Scottish Court of Session Decisions

Subject_1 SUPERIOR AND VASSAL.
Subject_2 SECT. X.

What Sort of Singular Successors entitled to be received by the Superior? - Whether the Seller or Purchaser bound to enter?

Magistrates of Musselburgh
v.
Brown

Date: 21 February 1804
Case No. No. 45.

A vassal infeft having disponed the subject to his heir, with procuratory and precept, the uperior, though bound to enter the heir upon a precept of clare constat, whieh cannot be assigned, is not obliged to grant a charter upon the procuratory, in the disposition, to the effect of enabling the heir to assign it away before infeftment, and thereby to disappoint the superior of his casualty of a year's rent from the singular successor,

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Captain Richard Dobie obtained, by purchase, certain feus granted by the Town of Musselburgh, and he was infeft on the precepts of sasine contained in the original feu-charters, which had been assigned to him unexecuted. He executed a disposition of these subjects in favour of his son, Adam Dickson Dobie, which contained a procuratory of resignation and precept of sasine. Upon his father's death, the son succeeded, but died without making up any title, and was succeeded by his sister Williamina. She sold the property to Alexander Brown, wood merchant in Fisherrow; and, to complete the sale, she expeded a general service as heir to her brother. Thus taking up the unexecuted procuratory of resignation in Captain Dobie's disposition, she applied for a charter of resignation from the superior; which was accordingly prepared by the superior's man of business, but not delivered till it should be explained in whose person infeftment was to be taken. In the mean time, she assigned it over to a purchaser, who insisted, that the charter should be delivered to him, on paying the casuality exigible by the superior from an heir, and that he was not liable for a year's rent.

The Lord Ordinary pronounced this interlocutor, (8th March, 1803): “In respect that Adam Dickson Dobie, as only son and heir-at-law of his father Captain Richard Dobie, was entitled to be entered in the subject in question as heir to him, under the disposition in his favour as an heir, and not as a singular successor, finds, first, That the late Williamina Dobie, his only sister, and heir-at-law both to his father and him, had, as carrying right to the procuratory in that disposition, by general service, the same right with her brother to have obtained delivery of the charter made out in her favour, on payment of a double feu-duty as heir, and could not have been obliged to pay a composition as a singular successor; and, secondly, That as the defender obtained an assignation to that charter, the precept in which is a sufficient warrant for infefting him in the subject as her assignee, he has, as thus standing in her right, a title to obtain delivery thereof on the same terms on which such delivery must have been made to her, that is, on paying the dues of the same, according to the account thereof in process, and the duty exigible under the original grant from the person entering as heir; and decerns and declares accordingly.”

The Magistrates reclaimed, and

Pleaded: Superiors are obliged to give an entry as heir to those only who claim literally in that character, and who, demanding this entry, have been acknowledged by precept of clare as the true heirs of the last, vassal recognised by the superior, or have it proved by a service. But any person who derives right by a singular title must pay the composition exigible in that character. Where a son, therefore, receives a disposition, containing procuratory and precept, from his father, though alioqui suceessurus, and makes use of that disposition to the effect of assigning it away before infeftment, he thereby makes himself a singular successor, or which is the same thing, he puts a singular successor in his place. If his only purpose be to complete his title by a charter, in place of a precept of clare constat, he ought to give it the same effect, by taking infeftment upon it in his own person; but if, instead of taking infeftment himself, he assigns the procuratory and precept, either he or the assignee must be liable to pay the casualty due by a singular successor, otherwise the superior's just claim to his casualty would be evaded.

Answered: The charter assigned in this case, and which ought to be delivered, expressly contains a clause to heirs and assignees whomsoever. This last character of assignee, which the respondent enjoys, was inserted by the superior himself, and it gives him the same privilege with his author, which was to enter as an heir. Now, while his author was not bound to take infeftment in her own name, as her right expressly contained assignees, she was at liberty to assign it as it stood; and the superior cannot refuse to give infeftment upon it, to any assignee in whose person it may now stand, upon payment of the same casualty which she was bound to pay,

Observed on the Bench: The heir of a vassal is entitled to be entered as such, on payment of the duplicando or other composition exigible from an heir, but he cannot demand such an entry as will enable him to introduce a singular successor in his place, without payment of a year's rent. If, therefore, instead of a precept of clare constat, he demands a charter; which may be assigned, the superior is not obliged to comply with this, unless satisfaction is given as to the year's rent.

The Lords “alter the interlocutor reclaimed against, and find, that the respondent Alexander Brown, upon receiving the charter before mentioned, must pay to the pursuers the usual composition as a singular successor; also find him liable in expenses.”

To which they adhered, (February 21,) by refusing a petition, without answers.

Lord Ordinary, Bannatyne. Act. Rae. Agent, T. G. Wright, W. S. Alt. Corbet, Morison. Agent, Ja. Skinner. Clerk, Walker. Fac. Coll. No. 147. p. 329.