Scottish Court of Session Decisions

Subject_1 MEMBER of PARLIAMENT.
Subject_2 DIVISION IV.

Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. V.

Freeholders must be infeft on proper Titles, and their infeftments recorded, year and day before Enrolment.

Lauchlan Grant, Writer in Edinburgh,
v.
Alexander Hay, Younger of Cocklaw

Date: 14 January 1761
Case No. No 168.

A renunciation of a reserved faculty, to alter or innovate the fee, granted in favour of the fiar, must be recorded a year before he can be enrolled as a freeholder.

Click here to view a pdf copy of this documet : PDF Copy

At the Michaelmas meeting of the freeholders of the county of Aberdeen in 1760, Alexander Hay, eldest son of James Hay of Cocklaw, was enrolled upon production of the following titles; 1mo, Charter of resignation in favour of his father in liferent, and of himself in fee, of the lands of Meikle Cocklaw, and others, containing a reserved power to the father to alter; 2do, Instrument of sasine following upon the charter, dated 25th October, and registered 14th November 1757; 3tio, Discharge and renunciation, by the father, of the reserved power, in so far as concerned certain parts of the lands contained in the charter, dated 29th September 1759; And, 4to, An act of division of the Commissioners of Supply ascertaining these lands to amount to L. 444:19:8 Scots of valued rent.

Lauchlan Grant, a freeholder of the county, complained of this enrolment to the Court of Session, and objected, That the renunciation of the father's reserved power had not been recorded a year before the Michaelmas meeting.

Answered for Alexander Hay, It is sufficient that the fee was disburdened of the reserved power, and rendered irredeemable a year before the enrolment; for although the act of the 16th of the late King requires, that the sasine be registered a year before enrolment, the recording a renunciation of a faculty is prescribed by no statute whatever; and as the above mentioned act is correctory of the former law, it ought not to be extended by interpretation. Nay, it does not even seem requisite, that every thing necessary to render a title quite complete should be done before the year commences. A purchaser from an apparent heir is entitled to be enrolled, if his own infeftment be recorded a year before, although the apparent heir's titles be not made up for some time thereafter. The law requires only that his own infeftment be recorded in due time; it does not require that another deed, though necessary, by way of reply to take off an objection, be so early executed.

Replied, It is a real feudal right alone that can give a freehold qualification; consequently, no personal right can be brought in to make good such qualification. Now, in the present case, the infeftment gave only a redeemable property. To render it irredeemable, a renunciation of the reserved power was absolutely necessary. But whatever effect a latent and personal renunciation may have against the granter, it must be recorded before it can be effectual against third parties. The irredeemable right of property, therefore, is not properly completed until the renunciation be recorded; and as the charter and infeftment, by which the original right is constituted, must appear upon record a year before enrolment; so it is equally necessary that the release or discharge of any burden affecting that right be registered at the same time. Nor is the instance of a freehold purchased from an apparent heir, in the least analogous to the present case. If the purchaser has expede a charter under the Great Seld in his own favour, and has got his infeftment upon record a year before his enrolment, as he is thereby received the Crown's vassal, it is nothing to the freeholders although his title was derived from one that never had a vestige of a right to the lands. The claimant's own charter and infeftment are all that they are concerned with; where these concur, they must enrol, because the title is ex facie complete; and the law has not given them any power to investigate the progress of a claimant's titles.

‘The Lords ordained Alexander Hay to be struck off the roll of freeholders.’

For the Complainers, Ja. Douglas, Lockhart. For the Respondent, Ferguson, jun. Burnet. Fol. Dic. v. 3. p. 423. Fac. Col. No 5. p. 8.