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Scottish Court of Session Decisions >>
Dempster v Lady Kinloch. [1750] Mor 14313 (00 June 1750)
URL: http://www.bailii.org/scot/cases/ScotCS/1750/Mor3314313-006.html Cite as:
[1750] Mor 14313
Symbols and Formalities of Infeftment of Annual Rent.
Dempster v. Lady Kinloch
1750.
June Case No. No. 6.
Stated, what symbols are necessary in a sasine of an anual-rent out of teinds, & c,
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In the Competition stated of this date, between these parties, No. 104. p. 10290, a special objection was made for the Lady to Dempster's preference on the teinds, that his infeftment was null as to these on this ground, that although the teinds were expressly disponed, yet there was no proper symbol for them, either in the precept or in the sasine, nor did the sasine bear that any heritable state of the teinds was at all delivered, but only that the bailie delivered earth and stone for the lands, clap and happer for the mill, and a penny money as use is.
To this one answer made might have been sustained, had it been true in fact, that the lands, teinds, mills, and fishings, were all erected into one barony, and a sasine at the principal messuage, or any other part of the barony, declared sufficient for the whole: After which erection, it was unnecessary to have different symbols for each subject so erected; otherwise it would follow, that a coble, a net, clap and happer, must be carried to the principal messuage, or other part of the barony, where sasine should be taken, which nobody would imagine.
But no such erection appearing, the other answer was, that where an infeftment of annual-rent is granted out of lands and teinds, a penny money, if the annual-rent is payable in money, or a handful of corns, if out of victual, is the proper symbol both for the lands and teinds; as the feudal right intended to be constituted is not in, or of the lands, but of an annual-rent.
But this was not satisfying; for in all sasines on annual-rent rights, it is necessary that there be a sasine by its proper Symbol in the subject, out of which the annual-rent is payable; of earth and stone, where it is payable out of the lands, and of grass and corn, where it is payable out of teinds; insomuch, that though the Lords have on some occasions sustained a sasine upon a right of annual-rent, where there was a symbol of the subject out of which it was due, though no mention was made of a penny money, the proper symbol of an annual-rent, yet in no case has ever a sasine on an annualrent right been sustained without a symbol of the subject out of which it was due.
But no interlocuter was given on this point, the Lady having been preferred upon another ground, as observed, voce Personal and Real.
