Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. IX.

Effect of a Charter of Confirmation.

Ayton
v.
Duncan

Date: 14 January 1676
Case No. No 59.

Confirmation excludes not the superior or his donatar from the casualties of superiority fallen before the confirmation, which are consistent with the right of property; excluding only recognition, and such like, totally subversive of the right of property.

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Ayton of Kinaldie, as donatar by the Arch-bishop of St Andrews, to the liferent escheat of Hamilton of Kinkell, pursues declarator thereof: Compearance is made for James Duncan, who produced an infeftment of an annualrent of L. 40 out of these lands, in security of 1000 merks, who alleged, that the declarator behoved to be with exception of his annualrent, because he was publicly infeft by the Bishop of St Andrews, by his charter of confirmation produced, long before the gift granted to this pursuer was intimated, or any citation or declarator thereupon; so that the donatar being but assignee by his gift, if the defender had gotten a discharge, or a second gift, which needed no declarator, as to the defender's own right, he would exclude the donatar; and, in this case, he hath the equivalent, viz. a charter of confirmation from the superior, before any intimation or diligence, and therefore is in the same case as if the superior himself were pursuing for this casualty, who would be excluded as being in dolo, as receiving a singular successor for an onerous cause, without mention or reservation of any right of his own. 2do, The right of property comprehends, and is extended, to all other lesser rights; so that, whoever dispones the fee, is understood to dispone all right, unless it be reserved; and therefore, the superior disponing the right of property to a new vassal, either by his charter upon resignation, or by confirmation, dispones all other inferior rights, so that a donatar of liferent or ward, disponing the property, though without mention thereof, doth dispone the same, and omne jus, and so must the superior's charter of property dispone all right the superior hath. 3tio, The consent of any party to a disposition of property, transmits all right the consenter had, and is not understood to be non repugnantia, or to consent that the disponer should dispone all his right, for that he might do without consent, unless he were interdicted; but it imports, that the consenter communicates his own right, and the superior's confirmation is a very full consent. It was answered for the pursuer; That albeit it be true that an original disposition of property is presumed to comprehend all lesser rights, unless reserved, or that consent doth often times operate the same effect, yet that makes nothing to the point in question, where there is nothing intended or done, but the accepting of a new vassal in place of an old, and transmission of the right of the one to the other, which can only be done by the superior by resignation or confirmation, which as to this, are alike; and no man thought himself secure by a charter upon resignation as to prior casualties, though not reserved; and there is less reason for a confirmation, whereunto the vassal having only disponed his own right, the superior confirms what he hath done, and accepts him, but dispones nothing of his own superiority, or any casuality thereof. And in charters upon resignation, the vassal having resigned the fee in the superior's hands in favorem, the superior dispones the fee, but dispones nothing of his superiority, or any casualty thereof; and charters, either upon resignation, or by confirmation, are not equivalent to the superior's joint and simple consent, nor can be understood to give any more than what was the right of the former vassal disponer, at least can only give the right of fee, but nothing of the superiority, unless the charter contain a novodamus, for that is an original right joined with the communication of the old right; and, therefore, though it should express no special casualty, it comprehends all; because the right of property comprehends all inferior right, when it is simply disponed, and not for a particular effect, albeit clauses of novodamus use to pass by special gift, these not being known or componed for, seeing the King is not prejudged by the neglect of his officers, but it is not so in other superiors; this only is common to both, that such charters granted exclude recognition or any other right destructive of, and inconsistent with the fee and property, but not such rights as do but burden the same; and seeing singular successors, for their securities against casualties, use to adject clauses de novodamus, where these are not, it is neither the intention of the superior, nor expectation of the vassal to be free thereof.

The Lords repelled the defence, and found that a confirmation did not exclude the superior or his donatar from the casualties of the superiority fallen before the confirmation, which were consistent with the right of property; for albeit this right of annualrent did not stand formally in the person of the former vassal, who had the right of property, which comprehends the annualrent, yet it was no new original right granted by the superior, but a transmission of a part of the old right to this annualrenter

There was also an allegeance upon a reservation in the charter of confirmation, whereupon both parties pretended a specialty in their favours. But the Lords determined the general point, that both superiors and vassals might know their condition.

Fol. Dic. v. 1. p. 435. Stair, v. 2. p. 398. *** Gosford reports the same case:

1676. January 12.—In a multiple-poinding, raised at the instance of the tenants of Kinkell against Kinaldie, and James Duncan, it was alleged for Kinaldie, That he ought to be preferred, because he was donatar to Kinkell's liferent escheat by a gift from the Bishop of St Andrews, who was superior before any confirmation of the infeftment of annualrent granted to Duncan; and the said confirmation not bearing a de novodamus, could not take away from the superior's donatar the right of escheat. 2do, As this confirmation was only of course, and had no de novodamus, so it was affected with a special provision, bearing reservatus nobis feudefirmis aliisque debitis et consentis, which did import the liferent escheat, or any other thing due to the bishop before the confirmation. It was answered for Duncan, That notwithstanding he ought to be preferred, and that the first reason could not militate against him, because albeit Kinkell, who was common debtor, was at the horn before his confirmation, and his liferent escheat gifted, yet, there being no declarator obtained thereupon, he obtaining a public right from the Bishop by a confirmation, which was of a charter to be holden a me, the Bishop granting the same, no private deed could prejudge the new vassal, unless the same had been publicly declared by a decreet, and unless the Bishop had particularly reserved that gift. It was answered to the 2d, That the reservations being only of the feu-duties, aliisque debitis et consentis, would not include a liferent escheat, which was fallen before upon a particular rebellion, which can never be interpreted to be debitum et consentum, but can only be extended to the reddendo of the charter, such as casualties.——The Lords having considered this case as a general case, to be a practique betwixt superiors and new vassals, did ordain the same to be heard in præsentia; and, after a full hearing, they did long debate amongst themselves how it should be decided: As to the 1st point, it being argued by some, That there was a great difference betwixt vassals who enter by the King in Exchequer, by way of resignation or confirmation, and others, who enter by other superiors, who hold these superiorities of the King, there being a special act of Parliament, declaring, that the King cannot be prejudged of his casualties by his officers entering of new vassals, unless the same be particularly gifted and disponed upon composition, which is done, upon that reason, that the King, or his officers, do only grant signatures in course, and cannot, nor are not obliged to know, that his former vassal was at the horn, or that the ward, or non-entry, did belong to the King; whereas other superiors are no ways provided for by this act of Parliament, but on the contrary, they receiving a new vassal, upon resignation, or confirmation, it is against law to burden that same vassal by any deed of theirs, contrary to their own public right, especially where that same casuality was known to them, as was in this case; and a new vassal being in bona fide, and not obliged to search all registers, he needed not seek a de novodamus, which is only a late invention ad majorem securitatem, and was never practised of old; so that the superior having it in his power to grant a new charter or not, the presumption of law lies against him if he did not grant a voluntary right, which he could never have been compelled to do if he did know of any right or casualty, or which he might know by the searching of the register, before he did receive a new vassal, without any intimation that he had granted a prior gift, or might grant the same, as being in his power. It was argued by others, That a superior granting a new right, by confirmation or resignation, did it only in course, and did only convey his former vassal's right, which he had disponed; and he being at the horn, and his liferent escheat fallen, did not prejudge himself thereof, unless he had particularly disponed the same by a de novodamus, and needed not receive the same in his new right; and that all superiors, albeit vassals to the King, are founded in law as to the casualties, albeit they are not mentioned in the act of Parliament with the King. It was argued, by those of the contrary opinion, that a present vassal disponing by resignation, or a charter a me, any right he had, which was only utile dominium, the superior who before stood infeft and had directum dominium of the lands, becomes absolute dominus, and hath plenum dominium; and by granting of a new charter to the vassal, without any provision or restriction, which is a perfect public right, the vassal can never be burdened with any private deed of his ordination, which is only an assignation to prior mails and duties, or in time coming, unless the same had been made public by intimation, or a decreet of declarator: Notwithstanding whereof, the Lords did prefer the donatar, which was hard; I myself being of a different opinion, and craving, that, before that was made a leading case, the preference should rather be determined upon the second point, founded upon the restriction as it was conceived, but this was refused as not being necessary, in respect of the foresaid decision upon the first point.

Gosford, MS. No 832. p. 525.