Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. IX.

Effect of a Charter of Confirmation.

Lord Halton
v.
The Earl of Wemyss

Date: 6 February 1673
Case No. No 58.

The King's confirmation of a right to part of the ward lands granted by the vassal, secures against posterior recognitions, but not against those already incurred; which cannot be done without a novodamus.

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The Lord Halton having a gift of the recognition of the estate of Craig, pursues declarator of recognition, on this ground, that the whole ward lands were disponed by Craig to Pittarro, after the King's return, anno 1660. Compearance is made for the Earl of Wemyss, who produced an infeftment of annualrent granted by Craig out of his whole estate united in one barony; which annualrent was confirmed by the King long before the gift of recognition granted to the pursuer. It was answered for the pursuer, That the defence is not relevant, for it is the unquestionable principle of feudal law, and our custom, “That in proper fees or ward-holdings, if the vassal alienate the major part of the fee without consent of the superior, the fee falls in recognition and returns to the superior.” And albeit the superior's consent may be either antecedent, concomitant, or consequent to the right made by the ward-vassal, and so may exclude recognition, in so far as it is incurred by that right consented to; yet the consent to that right can never import that the superior hath consented to prior alienations made by the vassal without his consent, as if the superior had received resignation from the new vassal in favours of another, that confirmation might import a subsequent consent of the superior to that new vassal's right, but could never import a consent to pass from any prior recognition or feudal delinquence, by which the property was returned to the superior by a several and anterior deed before the right confirmed or consented to; for these consents of the superior being gratuitous, are not to be extended beyond what is expressly granted, especially in confirmations granted by the King which pass in Exchequer of course, and are denied to none, which ought not to be extended to take away recognitions fallen before by other alienations than those confirmed, which the King or his officers did not know; and, if that should once be sustained, the Exchequer would either insert a clause, ‘excepting former recognitions,’ or would not confirm till they searched the registers for former recognitions; and therefore that defence is not relevant, that this annualrent was confirmed before the donatar's gift, unless it had been confirmed before Craig's total alienation, whereupon the recognition is craved to be declared. It was replied for the defender, That his defence, as propounded, is most relevant, because whatever might be alleged in the case of an indirect consent of the superior by accepting of resignation or homologation; yet, where the superior directly repeats and confirms the annualrent now quarrelled, that confirmation doth necessarily import that the superior acknowledges and allows that the annualrenter hath right to his annualrent, which the superior makes firm by his confirmation, and so communicates all strength to it that it can, or at least his consent, if it communicate not, his right must infer non repugnantiam, that he will not quarrel the right confirmed upon account of any feudal deliquence by which he might claim the right of property; and, though the confirmation would not communicate or exclude rights of property competent to the superior, yet it cannot but exclude feudal delinquencies competent to the superior as superior; otherwise the superior's confirmation should neither secure from former recognitions, disclamations, purprisions, and the like, contrary to the common and received opinion of the lawyers and people of this kingdom, as appears by Craig, 1. 3. d. 3. And there is an express decision observed both by my Lord Haddington, then the King's advocate, and Sir Thomas Hope, anno 1612 in the case of Adam Rae, No 53. p. 6459. who being donatar to the recognition of thebarony of Auchterlony or Kelly, insisted for declarator upon three sasines granted by Auchterlony, with consent of his son to his oye; the last of which was anno 1605, and upon a sasine granted in favour of the Earl of Crawford 1610; wherein compearance was made for eight or nine annualrenters; who proponed their defences in the same terms this defender propones, viz. that these annualrenters were confirmed before the donatar's gift, without necessity to allege confirmed before the deeds of recognition; and in the recognition of the estate of Gray at the instance of Sir George Kinnaird, decided since the King's return, confirmations being produced long after the deeds of recognition were allowed, and not insisted against. And if this were not sustained, the securities of all the lieges may be in hazard by gifts of recognition, seeing during the usurpation such infeftments were thought to be valid, and recognitions were discharged. The pursuer duplied, That there is no such received opinion or practice, that a confirmation excludes all anterior recognitions and feudal delinquencies; but, on the contrary, the common resolution of all lawyers hath ever been, that to secure against that, a novodamus was necessary; and it never was the opinion of any, that a simple confirmation is equivalent to a novodamus; and if this were once sustained, it were easy to evacuate all the King's casualties by resignations or confirmations, which pass of course, and are never refused to any, but when a novodamus is included, the composition to the King is increased, and it is done of knowledge to exclude all these hazards; and it is without question, that confirmation and resignation are equivalent terms in law, so that the confirmation imports only a receiving of the vassal in such right as his author had. And as to the practiques alleged upon, Sir George Kinnaird's decreet was produced, in which there is nothing of this point either proponed or sustained; and, albeit Sir George did not quarrel several infeftments confirmed, yet it is clear that these infeftments were confirmed even after his gift, which the defender will not pretend to be relevant. And as to Rae's practique, 1mo, One decision either contrary to the nature of the right, or to the conveniency of the people, doth never determine the Lords, unless a consuetude were introduced by several decisions; and it is clear, that this decision is against the current of law, which the Lords would not allow, viz. that an alienation by a grandfather to his oye should infer recognition, because he is not immediate successurus; but taking the materials of that decision as they could be justly sustained, they make nothing against this case, for excluding the recognition, as falling upon the dispositions to the oye, there remained no more but the disposition made to Crawford, which was anno 1610, and all the annualrents confirmed that mention a date, were not only before the donatar's gift, which was anno 1611, but were before the deed of recognition by the disposition to Crawford, which was anno 1610; so that the Lords and parties were not anxious as to the terms of the defence, the confirmations being both before the deed and gift of recognition.

The Lords found that a confirmation, albeit it excluded recognition by the right confirmed, or by any several posterior deed, yet that it did not exclude a total recognition incurred before the infeftments and confirmation.

Fol. Dic. v. 1. p. 435 Stair, v. 2. p. 164.