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Scottish Court of Session Decisions >>
Janet Houston and Others, v John Houston. [1784] Mor 14420 (4 February 1784)
URL: http://www.bailii.org/scot/cases/ScotCS/1784/Mor3314420-005.html Cite as:
[1784] Mor 14420
What Court competent to serve? - Service more burgi.
Janet Houston and Others, v. John Houston
Date: 4 February 1784 Case No. No. 5.
In the entry of heirs more burgi, the want of the legal formalities is not to be supplied by equipolent circumstances.
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George Houston executed a disposition of certain heritable subjects, lying within the burgh of Fortrose, “in favour of himself in liferent, and of the heirs of his body in fee; whom failing, in favour of his brother John Houston, and the heirs of his body.”
After the death of George, John took infeftment on the disposition more burgi. In the instrument of sasine, however, it was not expressed, that the bailies had cognosced his title as heir of provision; nor that, in virtue of the procuratory, the subjects had been resigned into their hands. John having afterwards disponed them to a natural son of his, Janet Houston, and other heirs at law of George, insisted in a reduction of John's infeftment, as being, from the defects above-mentioned, null and void.
Pleaded for the pursuers: Cognition by the bailies of an heir's title, is an indispensable requisite to his entry by hasp and staple, or more burgi; and it is likewise necessary that resignation of the heritage should be made into their hands. The only legal evidence of these essential circumstances is the instrument of sasine; but from that in question they do not appear to have taken place; vid. Stair, B. 2. Tit. 3.; Bankton, B. 3. Tit. 5.
Answered: It seems needless to have mentioned in the sasine, that cognition had been taken of a fact which must have been notorious to the bailies; and with respect to the resignation, the disponee, who in the instrument is described as holding the disposition in his hand, ought to be viewed in the double character of procurator for the disponer, and of receiver of infeftment.
The Court considered the plea of the defender as tending to annihilate the established feudal forms; and on that ground, (the question relative to the competency of the service not having been agitated,)
The Lord Ordinary having “sustained the reasons of reduction, and objections to the sasine,”
The Lords adhered to that interlocutor.
Lord Ordinary, Hailes.Act. Elphinston.Alt. James Grant.Clerk, Home.
Fol. Dic. v. 4. p. 277. Fac. Coll. No. 143. p. 224.
