Scottish Court of Session Decisions

Subject_1 MARRIAGE, AVAIL OF.

Earl of Queensberry
v.
Duke of Buccleuch

Date: 26 June 1672
Case No. No 31.

The more ancient superior is preferred in the avail of the vassal's marriage.

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Earl of Queensberry pursues Scot of Chamberlain Newtoun, for the avail of his marriage, in respect he holds the lands of Lairhope, ward of the Earl. Compearance is made for the Duke and Duchess of Buccleuch, who craved preference, because the defender had right to the lands of Chamberlain Newtoun ward, and that by a progress from Turnbull of Chamberlain Newtoun, his author, whose infeftment ward, granted by the Earl of Bothwell, in anno 1528, was produced; and the original right of Lairhope, granted by Queensberry's predecessors, was only in anno 1571. It was answered for Queensberry, That the said infeftment granted to Turnbull was not standing, and continued to this defender, whereby Buccleuch coming in the place of Bothwell, could have right to the marriage as the more ancient superior, because Bothwell being forfeited, and Turnbull's right unconfirmed by the King, it became void and extinct, as effectually as if Turnbull had resigned ad perpetuam remanentiam; and the first standing right by which this defender possesses Chamberlain Newtoun, is an original right granted by the Earl of Buccleuch, which is much later than the original infeftment granted by Queensberry's predecessors, which stands now in the person of the defender. It was replied for Buccleuch, That the forfeiture of the Earl of Bothwell did not extinguish Turnbull's infeftment in the same manner as a resignation ad remanentiam, because the forfeiture gave only a power to the King to annul the sub-vassal's right, not being confirmed by the delinquence and forfeiture of his superior; yet it did not necessarily require a new infeftment by the King to the sub-vassal, but his passing from the forfeiture in any way was sufficient; yea if the sub-vassal had possessed till prescription, his old infeftment would be a sufficient title for prescription, and would be validated by possession. Ita est, The King never excluded the sub-vassal by the forfeiture, but, on the contrary, gave him a charter, now produced, of the same lands, bearing, that they did belong to him before the forfeiture, and were in the King's hands, by reason of the forfeiture of Bothwell, which charter is in effect a restitution or confirmation. It was answered, That the defender hath not rested upon his old right and prescription, for there is no progress shown to the old right; but there is not only produced the charter by the King upon the forfeiture, but a posterior original right granted by Buccleuch. 2do, The charter granted by the King is neither a restitution nor confirmation, but is a new original charter, bearing expressly to be granted by reason of the forfeiture, and bearing reddendo servitia debita et consueta nobis ante forisfacturam; so that by this charter, the King, as proprietor, did assume the sub-vassal in place of Bothwell, not for the services due by the sub-vassal to Bothwell, but for the services due to the King, which was only by Bothwell, and not by the sub-vassal, who was not the King's tenant, neither was there any sasine or progress of right from the King's charter, but only upon Buccleuch's charter.

The Lords preferred Queensberry to the avail of the marriage, as being the more ancient superior.

Fol. Dic. v. 1. p. 569. Stair, v. 2. p. 90. *** Gosford reports this case:

Scott of Chamberlainnewton, being vassal both to the Duke of Buccleuch and the Earl of Queensberry, in ward lands; after the decease of his father, the Earl of Queensberry, did pursue for the avail of the marriage, as being the elder superior, wherein compearance was made for the Duke and Duchess of Buccleuch, who alleged, That they ought to be preferred, because they came in the place of the Earl of Bothwell, who was forfeited by a charter from the King, who was superior of the said lands of Chamberlainnewton, before ever the heritors thereof were vassals to the Earl of Queensberry's predecessors; likeas the said Scott of Chamberlinnewton had become vassal to the King, by a charter under the great seal, disponing the said lands to him, to be held ward immediately of the King, which did seclude the Earl of Queensberry from any pretence to the marriage. It was replied for the Earl, That he ought to be preferred notwithstanding, because by the forfeiture of the Earl of Bothwell, who was immediate vassal to the King, the sub-vassal's right became altogether extinct; for, by all who write upon the feudal law, delictum est modus aperiendi fcudum as effectual as a resignation of the property ad remanentiam in the superior's hand, these being pares termini in jure to make feus null alienando vel delinquendo. But so it is, that the Earl of Bothwell being forfeited, the sub-vassal, who was never confirmed by the King, his right became extinguished, and was consolidated with the superiority, and any new right granted by the Duke of Buccleuch, to whom Chamberlainnewton became vassal, must be looked upon as a new right, and consequently being long posterior to the right of his lands held of the Earl of Queensberry, he ought to be preferred as antiquior dominus. The Lords having considered this case, as being in apicibus juris, did find, that if, after the forfeiture of Bothwell, the King had granted a confirmation of the sub-vassal's right, that law presumes it had been confirmatio juris antiqui; and so he being in that same case, as if he had held of the Earl of Bothwell before his forfeiture, the Duke of Buccleuch, who got the superiority, had been preferred; or, if Chamberlainnewton had remained immediate vassal to the King, by his new charter, the King or his donatar could only have had right to the marriage; but the Duke of Buccleuch, a stranger, to whom the superiority was disponed, having got a resignation from Chamberlainnewton, aftsr he was immediate vassal to the King, and he having accepted of a new charter from the Duke of Buccleuch, to be his vassal, the Lords did prefer the Earl of Queensberry, as antiquior dominus, the competition being betwixt two subjects, of whom a vassal holds several lands-ward, in which case the more ancient is always preferred.

Gosford, MS. No 497. p. 262.