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Scottish Court of Session Decisions >>
David Stewart, v James Burnside. [1794] Mor 15027 (12 November 1794)
URL: http://www.bailii.org/scot/cases/ScotCS/1794/Mor3415027-032.html Cite as:
[1794] Mor 15027
Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. VIII.
A Superior may compel his Vassal to enter, but not entitled to Infeft him without his consent.
David Stewart, v. James Burnside
Date: 12 November 1794 Case No. No. 32.
A superior is not entitled to infeft the vassal in a feu-right, without his consent, nor to insist that the infeftment shall be expede by his own man of business.
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Sir John Maxwell's commissioners granted a feu-disposition to James Burnside, his heirs and assignees, which was made out by David Stewart, writer to the Signet, Sir John's man of business, who also took infeftment on the precept, and extended the sasine, without having received any orders from Burnside to that purpose.
Mr. Stewart afterwards brought an action against Burnside, for payment of £.3 19s. 112d. as the expense of the feu-disposition and infeftment.
The Lord ordinary found “the defender liable for the articles charged in the said account, in so far as relates to the execution of the disposition by Sir John Maxwell's trustees, in favour of the defender, amounting to £.1 13s. 612d. Sterling; but in so far as the articles in said account relate to the instrument of sasine, and taking infeftment thereon, in respect it is admitted the defender did not employ the pursuer to extend said instrument, or take infeftment thereon, found the pursuer can have no claim against the defender, for payment of said articles.
In a reclaiming petition, the pursuer
Pleaded: As the superior is obliged to give, so the vassal is bound to take immediate infeftment. If he were not, he might, by assigning the unexecuted precept of sasine, disappoint the superior of the year's rent which he is entitled to on the entry of a singular successor. Besides, till the original grantee is infeft, the superior is without a vassal, which is contrary to feudal principles. Neither could the superior in this case force the grantee to take infeftment, by bringing a declarator of non-entry, this being a remedy competent only against the heirs of vassals, who have themselves been entered. The proper way therefore of enforcing his right, is to infeft the vassal before he parts with the disposition, and to deliver it and the instrument of sasine to him at the same time, consequently these writings must be made out, and the infeftment taken by the superior's man of business.
Observed on the Bench: The petitioner's doctrine has no foundation either in law or practice. As the disposition is granted to “assignees,” the vassal is clearly entitled to assign the unexecuted precept.
The Lords, by a great majority, refused the petition, without answers.
Lord Ordinary, Henderland.For the petitioner, Maclaurin.Clerk, Home.
Fol. Dic. v. 4. p. 312. Fac. Coll. No. 129. p. 293.
