Scottish Court of Session Decisions

Subject_1 INFEFTMENT.
Subject_2 SECT. IV.

Method of obtaining Infeftment by an Heir.

Blackwood of Pitreavie
v.
The Representatives of Robert Colvill and Andrew Russell

Date: 7 November 1740
Case No. No 23.

An infeftment granted to representatives not specially named, is null.

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

Sir George Hamilton having right to an heritable bond on the lands of Didup, disponed the same (among other funds) to his creditors; in which, after enumerating several debts due to particular creditors, he adds, Item, to representatives of the deceased Andrew Russell, merchant in Rotterdam, specifying the particular sum due to them. Item, to the representatives of the deceased Robert Colvill, the sum of, &c. And the disposition further recites, That the creditors, in whose favours the same was granted, had condescended to accept of their respective funds therein specified, for their further security in corroboration of the several debts due to them, without any preference to any of the creditors, but all to have a joint interest therein; and it likewise contained a precept, upon which sasine was taken.

In the ranking and sale of the lands of Didup,

Blackwood of Pitreavie, who had right to a debt due by Sir George, upon which an adjudication had been led, appeared and claimed to be ranked for so much of the heritable bond adjudged, as was not exhausted by prior valid infeftments; and particularly upon that part of the subject which was claimed by the representatives of Colvill and Russell; to whom he objected, That the infeftment being given impersonally to the representatives of certain people deceased, the same was altogether invalid and inept, seeing it was impossible a feudal right could be constituted otherwise than to a certain person, one or more nominatim, who shall thereby become the vassal to the granter of the infeftment, and by the law of Scotland must appear in the register of sasines to be vested in such feudal right, so as third parties may know from whom they can safely purchase or acquire, or whom they shall call as defenders in a reduction and improbation. Now, if the infeftment thus given impersonally to representatives was void and null, it followed, that the subject disponed, in so far as concerned the predecessors of those representatives, and which was intended to be secured by this infeftment, did truly remain with Sir George Hamilton the granter, who was never effectually divested thereof, until it was taken out of his person by Pitreavie's diligence, namely, the adjudication of this subject, and infeftment following thereon; see Craig, Tit. De sasinis, § 4. Stair upon the requisites of a sasine, (B. 2. t. 3) and the decision betwixt the Duke of Norfolk and Sir William Billers*.

Answered, That there is nothing in the feudal law of Scotland, that requires, that, in a precept of sasine, the person intended to be infeft, should be designed by his Christian name and sirname; that the direct contrary is true. For instance, a charter granted to one, his heirs and assignees, containing

* Examine General List of Names.

a precept of sasine, is a good charter and precept, not only in favours of the vassal named in the charter, but also in favours of his assignees, voluntary or legal, independent of the statute 1693, cap. 35.; and therefore Pitreavie's doctrine that the superior must know his vassal, and that the same is not to be left to the judgment of his bailie, is contrary to the established principles of the feudal law. So that the objection comes to this, that the sasine given to the attorney for the representatives, is null, because it is given to no particular person. As to which it was observed, that no body ever doubted, there could not be a feu without a vassal and superior; but then no law has required, that the vassal, and much less that the creditor, should, in the sasine, be designed by his Christian name and sirname, and that such omission should infer a nullity; witness the case of infeftments granted to bodies politic and corporate, where there is no person infeft by name and sirname; nor is it any answer that the body politic sastinet visem personæ; for still this proves that the name of the vassal is not necessary to the validity of an infeftment; and that if the vassal is sufficiently described, so as he may be known, though the particular person in the fee does not appear from the infeftment, it is no nullity; and therefore, as in the present case, the representatives of Andrew Russell, in the moveable bond due to him, could be none other than his executors confirmed to him, to wit, his own daughters, who were confirmed to him at the date of the disposition; and the representatives of Colvill in the bonds due to him, secluding executors, behoved quoad the principal sum to be his heirs of line, served and retoured, there was no uncertainty as to the person of the vassal Besides, there were many infeftments not granted to persons by name and sirname, such as grants of lands to peers, described by their title of Duke, Earl, &c. The grant of the revenues of the religious houses in Perth, to the poor members of Jesus Christ, grants to the Virgin Mary, and the other saints, and those to the seamen of Leith, which have been sustained by the Court, though these last are not a body politic.

Replied, Rights granted to bodies politic, having a nomten juris, and perpetual succession, are persons known in law, and the infeftments given to them, or their administrators, in name of the society, are equivalent to the infeftment given to a particular person by name and sirname: And as to the societies not incorporated, Pitreavie is not bound to impugn their titles; possibly some of these, by long usage or possession, may have acquired a right to hold their acquisitions; but it is believed an infeftment given for the use of such societies, would be ill advised, if it were not given to certain persons nominatim for the use and behoof of such voluntary society; otherwise an infeftment given to the free masons of the lodge of Edinburgh or Lesmahago, would constitute a valid feudal right, without expressing the name of the grand-master for the time being.

The Lords sustained the objection made to the sasine following upon the disposition granted by Sir George Hamilton, in so far as relates to the representatives of Russell, and the representatives of Colvill.

Fol. Dic. v. 3. p. 317. C. Home, No 157. p. 266.