Scottish Court of Session Decisions

This was another application of the same kind as that in the preceding case. The North British Railway Company stated the same objection to the competency, which was disposed of in the same manner.

The objections stated to the title were— “ 1. That no prescriptive title had been produced to the respondents; 2. that the petitioner is not infeft; 3. that the word ‘dispone’ is awanting in the disposition in which the only warrant for infefting the petitioner Is contained.”

The Lord Ordinary (Mure) granted warrant to the petitioner to uplift the consigned fund upon her delivering to the respondents, along with a regular search of incumbrances, an assignation, or other deed of conveyance to the subjects in question, which will enable the respondents to complete their title under the charter of resignation, No. 9 of Process. His Lordship observed in his Note:—

“The objections to the title appear to the Lord Ordinary not well founded. For, although the property has been possessed upon a personal title for a series of years, it flows from a party who was duly infeft in 1806 on a feu-contract from the superior; and if the petitioner can show, which the Lord Ordinary thinks she is bound to do, by searches in common form, that there has been no preferable or competing right created in favour of any other party since the date of the disposition No. 7 of process, the circumstance that the petitioner is herself not infeft, and that no infeftment was passed on the disposition No. 7 of process, is not, the Lord Ordinary conceives, a sufficient ground for the respondents rejecting the title, provided

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that the disposition is itself not open to objection.

Now the only objection taken to this disposition is the omission after the words ‘hereby sell, alienate,’ of the word ‘dispone’ from the dispositive clause; and had this been a disposition without a procuratory of resignation, that omission might have given rise to a serious objection to the title; although the Lord Ordinary, having regard to the fact that the conveyance was plainly intended to operate as a de presenti one, and that the words ’ make over,‘ which are substantially equivalent in meaning to the word ‘ dispone,’ is inserted after ‘hereby sell, alienate,’ is not prepared to say that the omission of that word would necessarily be fatal to the deed. But the disposition contains a valid procuratory of resignation, which is truly a disposition in its nature, being a conveyance of the lands to the superior for new infeftment; and, as the lands in question have under the procuratory been resigned into the hands of the superior, who has accepted the resignation, and granted a charter to the petitioner as his vassal in the subjects in room of the granters of the procuratory, it appears to the Lord Ordinary that, if the petitioner produces proper searches up to the present date, she will be entitled to an order to uplift the money, upon her delivering a disposition or assignation to the respondents, such as will enable them to make up a title with the superior by means of the charter of resignation of 1861, No. 9 of process.

“ D. M.”

The railway company reclaimed. Solicitor-General and Thoms, for the railway company, argued—1. No disposition is good which wants the word “dispone.” The petitioner’s title is therefore bad. 2. The Lord Ordinary has awarded expenses which he had no power to do. Great Northern Railway Co., 8th June 1848, 5 Rail. Cases, 269; Graham v. Caledonian Railway Co., 27th Jan. 1848, 10 D. 495.

Clark and M'Laren, for the petitioner, admitted the general rule contended for, but argued that as the defect could be obviated either under the procuratory of resignation or by adjudication in implement of the obligation to infeft, an assignation by which the company could obtain a good title was all that the petitioner was bound to give. Renton v. Anstruther, 14th Dec. 1843, 6 D. 238, and 16 S. 184. At advising,