Scottish Court of Session Decisions

Subject_1 MEMBER OF PARLIAMENT.

Colonel Abercromby
v.
J Gordon.

1753, Feb. 23.
Case No. No. 54.

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This a Gentleman was also enrolled by the freeholders on this title: His elder brother Archibald was infeft in 1753 on a charter under the Great Seal on his father Peter Gordon's resignation in lands above L.400 valued rent, but reserving the father's liferent and power to sell, annailzie, or burden the lands, as he thought fit. Archibald is dead, and the said James his brother is his apparent-heir; and two days before James lodged with the clerk (agreeably to the act 16th Geo. II.) his claim to be enrolled. Peter the father assigned to him his liferent and renounced his reserved faculty, and he claimed to be enrolled as apparent-heir now that these faculties were renounced. The objection was, that he could not be enrolled as apparent-heir because his brother had no title to be enrolled, his right being quite precarious and nominal, and the renunciation, however it might entitle him to be enrolled were he infeft, yet it could not entitle him to be enrolled as apparent-heir. Answered, Even Archibald was entitled to be enrolled, notwithstanding the reserved powers for it was no redeemable right in the words of the act 12th Annæ; 2dly, Though he could not yet James can, as this was an extinction of these powers; 3dly, An apparent-heir may conjoin his predecessor's rights and his own, as if he was apparent-heir in L.300 valuation and other L.300 of his own; and quoted a case in 1745 in the county of Lanark, where we found that an heritor could conjoin his own valuation with his wife's, but not with that of his wife's lands wherein she was only apparent-heir; 4thly, If this renunciation does not make a good vote, then neither would it be good were the father dead; so he should be in worse case than if the right of the whole lands remained still with the father. It carried to sustain the objection and to order Mr Gordon to be expunged. For the interlocutor Milton, Justice-Clerk, Murkle, Shewalton, and I, and Minto in the chair, sed renit. Drummore, Strichen, Dun, Karnes. My reasons were, that though I thought an apparent-heir might possibly have right to be enrolled, albeit his predecessor could not be enrolled, for example, if the predecessor died before he was a year and day infeft, or being infeft on an adjudication or apprising and in possession, died within the legal, and the apparent-heir after the year and day, or after expiry of the legal, being in possession, claimed, I thought he had a title; but that the apparent-heir could not be enrolled or vote as apparent-heir, on a right that never was in his predecessor, but was acquired by himself; and therefore though he might be enrolled after expiring of the legal, yet if he should acquire a renunciation of the reverser, he could not within the legal vote as apparent-heir, because that right was not in his predecessor. That in this case Archibald's infeftment during his father's life was in my opinion nothing but the figure of a fee because he could take it away at pleasure; but then its validity depended on a condition, and by the father's death without altering, became absolute and simple; therefore upon the father's death the respondent would be entitled to vote in right of his brother's infeftment without any other right than was in his brother; but during the father's life he could not have been enrolled without a renunciation of the father's powers, which never were in his ancestor, and which therefore could give him no title as apparent-heir, and I doubted if an apparent-heir could conjoin his predecessor's valuation with that of his own, for it was not in terms of the act 1681 or the act 16th Geo. II. 3d July, Adhered, and Drummore turned for the interlocutor, as did Kilkerran on the answers.