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Scottish Court of Session Decisions >>
William M'Dowall and George Houston v James Hamilton. [1793] Mor 8807 (19 January 1793)
URL: http://www.bailii.org/scot/cases/ScotCS/1793/Mor2108807-183.html Cite as:
[1793] Mor 8807
Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION IV.
Decisions common to qualifications upon the old extent and valuation.
Subject_3 SECT. VI.
Apparent Heirs.
William M'Dowall and George Houston v. James Hamilton
Date: 19 January 1793 Case No. No 183.
An heir apparent may be enrolled, although his predecessor had only a base infeftment, which has been made public by confirmation since his death.
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James Hamilton was enrolled as a freeholder in the county of Renfrew, in the character of heir apparent to his father, upon production of the following titles; 1mo, A disposition of lands in favour of his father, affording a qualification; 2do, An instrument of sasine, proceeding on the precept in the disposition; 3tio, A charter of confirmation of the disposition and infeftment, obtained by the claimant after his father's death. In a petition and complaint, Messrs M'Dowall and Houston
Pleaded, An heir apparent is only entitled to be enrolled where his predecessor could have claimed that privilege.
But the claimant's father having only a base infeftment, was not qualified, and the charter of confirmation, obtained after his death, cannot be considered as part of his titles; 3d July 1753, Abercromby against Gordon, No 177. p. 8801.
Answered, A charter of confirmation makes the base infeftment public from its date; Erskine, b. 2. tit. 7. § 15.; Stair, b. 2. tit. 3. § 28. The intermediate death of the party infeft does not hinder its operation; and to entitle an heir apparent to be enrolled, it is sufficient for him to produce titles in the person of his predecessor, which would have given him that privilege.
The Court, upon the grounds stated for the defender, dismissed the complaint.
Act. George Fergusson.Alt. Cha. Hay.Clerk, Gordon.
Fol. Dic. v. 3. p. 425. Fac. Col. No 14. p. 30.
