EFFECT OF 4 in the person of the consenter, is a question discussed by Erskine,' who, in opposition to Craig's opinion,' says that the simple consent of a party who has truly the right to the lands validates the conveyance to the new vassal, or at least founds an action of adjudication in implement against the consenter, that is, authorizes the new vassal to obtain a judicial conveyance in conformity with the charter. This view appears to be supported by an old case, in which a disposition by a father, who was liferenter, with consent of his son, who was fiar, was held equally binding against the son as if he had been a principal disponer. In two subsequent cases, where the principal disponers had no title whatever, and the title was exclusively in the consenters, the Court held that the consent operated concurrence in the conveyance. In the earlier of these, the Court were unanimous in holding that the consent of the proprietor to the conveyance a non domino implied a conveyance by the party, 'as what could have no other intention or meaning.' In the other case, Baron Hume says, the point we are now discussing did not receive much consideration; and his own observations on this question are worthy of attention, as indeed they are in every case. He points out that, although the consenter may himself be barred from challenge, the question might assume a different aspect if maintained with an onerous and bona fide disponee of the true owner, who had got infeftment, and who could argue, with great effect, that the mere consent did not involve such an act of dominion as could transmit the property. This view coincides with that contained in Steuart's Answers to Dirleton's Doubts. At the same time, I think it may fairly be argued that the consent of the owner is as good as a commission or mandate to the principal disponer, authorizing him to grant the disposition. A consent to grant is very much the same as a bestowal of power to grant, which last would be quite effectual. But no Conveyancer should ever allow the question to arise. The safe and simple course is, to make all the parties who are, or claim to be, proprietors, concur in the deed as principals, granting not only the dispositive, but likewise all the executive, clauses with 'joint consent and assent.' Where the consent is given by a creditor, it imports simply non repugnantia; that he will not, for his interest, quarrel the right granted to the disponee. It does not imply a conveyance to the disponee of the debt due to the creditor, or a right to the disponee to use the debt in support of his title. In order to have such right, the disponee must obtain from the creditor an express conveyance of the debt, not a mere consent to the conveyance of the lands by the owner." When the lands to be disponed belong to a married woman, she is the principal party in granting the deed, which runs thus :- I, A., wife of B., and heritable proprietor of the lands after disponed, with the special 1 Erskine, ii. 3. 21. 2 Craig, iii. 1. 29. 3 Moncrief, 24th July 1691, Harcarse, 171. 4 Bucha 12th Dec. 1739, M. 6528, ། Ross's L. C. i. 33; and Mounsey, 29th 5 Steuart's Answers to Dirleton's Doubts, voce Consent. 6 Buchan, supra. 'advice and consent of my husband; and I, the said B., for myself and 'my own right and interest, and as taking burden on me for my said. 'wife; and we both, with joint consent and assent, in consideration,' etc. When trustees, or minors or others, with consent of guardians or others, are the granters, care will be taken to describe the character of the granters or consenters, and the deed under which they act. The particular variations of style applicable to these cases will be found in the Style Book,1 As regards the statement of the cause of granting, I think it enough CAUSE OF to refer to what was formerly said when we were considering the narra- GRANTING. tive clause in general, and also to the necessity, imposed by the Stamp Acts, of stating the full amount of the price when any is paid. 2 (2.) I proceed to the dispositive clause, which embodies the finished DISPOSITIVE act and will of the granter relative to the disposal of his property, and is CLAUSE. the most important clause of the charter. Professor Bell observes, that the dispositive clause contains the essence of the charter, which is the grant; and that, if the deed were to stop there, sasine might be obtained. by means of a separate precept, or by the judicial process of adjudication in implement of the disposition. This would hold true as to the transfer of an existing feudal estate. But it is to be remembered that the feucharter, though in one sense a deed of transmission, is so by constituting or creating a new feudal estate; and not only are the words of every dispositive clause in a conveyance of lands necessary in the feu-charter, but the manner of holding, and the conditions of the grant, or obligations to be performed by the vassal, require to be specified. These particulars are not usually expressed in the dispositive clause, but in subsequent clauses; and Professor Bell's observation, as far as it relates to an original feu-charter, is therefore to be taken subject to an important qualification. The dispositive clause, in a feu or blench charter, is intended to express the present dispositive act of the granter. It runs thus: Do hereby sell and in feu-farm' (or 'blench-farm') 'dispone to the said B., ' and his heirs or assignees whomsoever, heritably and irredeemably, all ' and whole,' etc. The terms expressive of the dispositive act vary according as the grant is onerous or gratuitous. When the grant is gratuitous, the words. will be give, grant, and in feu-farm' (or 'blench-farm') 'dispone;' and, when such words are used, Craig holds them to import a gift.3 When the grant is onerous, they will be as in the form above given, 'sell, and dispone,' which word 'sell' Craig holds to import a sale. But, although the words 'give, grant,' or the word 'sell,' are thus important, and the appropriate terms ought always to be selected, there is no word positively essential to the full accomplishment of the purpose of the deed as a de præsenti conveyance, and a direct warrant for divesting old and investing the new proprietor, unless it be the word 'dispone.' The use 3 Craig, ii. 3. 18. 1 Juridical Styles, p. 20, 99, et seq. 2 Bell's Prin. s. 760. 4 Ibid. DISPOSITIVE of that word has been declared essential for accomplishing the above purpose. It is to be kept in view, however, that the cases, in which the essential necessity for the use of the word 'dispone' in a conveyance of land has been enunciated, have been those of testamentary and gratuitous grants; not of onerous sale, as the grant in a feu-charter usually is. I will here notice the most important of these cases. 1. We have first the case of Ogilvie,' where an attempt was made to have effect given to the expression of an intention, contained in a testamentary deed, as the foundation of a title to land; but it was found that nothing would suffice but present dispositive words. Lord President Campbell said, 'An estate cannot, by the law of Scotland, be conveyed by mere will. It requires a disposition, or an obligation to dispone.' 2. I refer next to the case of Simpson.2 The deed in that case was a latter will executed at Buenos Ayres. By a subjoined writing, the testator declared it to be his will that his sister and her heirs should enjoy his estate, and requested that the above 'disposition' (by which he meant the will) might take effect, as he had no lawyer to advise him better. The Court found the will not sufficient to convey the lands. By the narrowest majority, they held it effectual as an obligation on the heir to convey to the testator's sister. But this judgment was strongly censured in a subsequent case. Lord Braxfield was 'very clear, that it was ill decided;' and held it 'to be an inviolable rule of the feudal law of Scotland, that an estate 'cannot be conveyed by mere expression of will. There must be words de præsenti conveying the lands.' Another eminent Judge said, 'There 'cannot be an opinion more hurtful to the feudal law of Scotland than 'that a deed, though not in itself a settlement, may be held to be an 'obligation to dispone.' 3 3. We have also the case of Stewart,* where the words used were 'leave and bequeath;' and the deed, which was a testament, was found ineffectual either as a conveyance or an obligation to convey. 4. Lastly, on this point, I refer to the opinion of Lord Meadowbank in the case of Hamilton.5 His Lordship says, 'If there is a word, in Scotch law language, which is technical, it is the word "dispone." If I may use an expression of my Lord Mansfield, I would say that I have served an apprenticeship to that word. There are very few technical expres'sions in the law of Scotland; but there are some which have been held 'essentially necessary in order to give effect to some kinds of deeds. Dispone" is one of them, and is held to be necessary in all conveyances of heritage. I remember once, when at the bar, of attempting 'to show that the essence of all such conveyances lay in the use of verba 'de præsenti as distinguishing them from wills, which are expressed in verba de futuro, and that it was of no consequence what the words 1 Ogilvie, 10th Dec. 1793, M. 3336, et seq.; 1 Ross's L. C. 13; affirmed 1st March 1796, 3 Paton's App. 434. 2 Simpson, 10th Jan. 1752; Elchies, voce Testament, No. 12; 1 Ross's L. C. 1. 3 Montgomery, 9th June 1795, Bell's Folio Cases, 203; 1 Ross's L. C. 7. 4 Stewart, 16th Nov. 1803, Hume, 881. 5 Hamilton, 3d March 1815, F. C. employed were. That was my argument, and I laboured hard to make out that "give" and "grant" were quite enough, but it would not do. 'I lost the cause unanimously. I could not gain a single Judge on the bench. There was the unfortunate word "bequeath" tacked in. The word "dispone" was held to be technically necessary, and I was not ' listened to.' FEU CHARTER. These, however, are all cases of testamentary and gratuitous conveyances Whether the words 'give,' 'grant,' 'convey,' and 'alienate,' or others of similar import, would be sufficient in such cases, if employed as words of de præsenti conveyance, and without the use of the word 'bequeath,' or some similar term having reference to de futuro conveyance, does not appear to be yet decided. In the cases before referred to, the deeds were held null. But a feu-charter is usually an onerous deed; and, when it is of that character, there can be no doubt that, even without the word 'dispone,' it would be effectual as a conveyance OMISSION OF and obligation to invest the new proprietor. Without that word, it 'DISPONE' IN may not be effectual as a direct means of divesting the old and investing the new proprietor; but, at all events, it will be effectual as an obligation, and, if necessary, the foundation of a suit, at the new proprietor's instance, for obtaining a judicial conveyance and investiture, that is, an adjudication in implement. But, whilst I have pointed out what appears to be the real state of the question as regards this word 'dispone,' and specially the remedy, in case it is omitted in an onerous feu-charter,--it ought, for the present, to be regarded in practice as the rule, that a deed, in order to be an effectual conveyance of lands, and a warrant for investing the disponee, must con-tain words expressive of de præsenti disposition, -the present dispositive act of the granter,—and amongst these the word 'dispone.' OF DISPONEE. Following the words 'give and grant,' or 'sell,' and 'dispone,' is the name DESIGNATION of the disponee, or his name and designation, if he has not been designed in the narrative or inductive clause,-with the destination to his heirs or assignees whomsoever,' or such other destination as may be agreed on. In regard to the name and designation of the disponee, I have only to remind you of the necessity of accuracy. The party ought to be described so as clearly to distinguish him from all others. The destination to heirs is always inserted; but if an original DESTINATION. charter be granted simply to A., without any destination over, it is of the same legal effect as if it were conceived to A., and his heirs or 'assignees whomsoever.' The case would be different if the destination to A. were followed by a substitution to B., with or without further substitutions. In such case, if it can be shown from the terms of the deed to have been the intention of the parties, the lands will fall to the children of A., if any; on the principle that the substitution to B. was granted under the implied condition that A, should die without leaving heirs of his body. But in the general case, and certainly if it were shown by the deed not to have been the intention of the parties to EFFECT OF dis- BETWEEN DIS- CLAUSES. favour A.'s children, the lands (on the death of A.) would fall to B.; and, even when A.'s children should succeed, the lands, in case of their failure, would fall not to A.'s other heirs, but to B., as specially called by the charter to succeed, in preference to such other heirs. When considering the signification of the term 'heirs,' in connexion with the moveable or personal bond, I noticed that it was a relative word of flexible meaning, and when used in the bond was to be understood as pointing out the heirs in moveables, that is, the next of kin generally. In the charter, on the other hand, the subject disponed being heritable, the term means heirs in heritage, as contradistinguished from the next of kin. Should the destination be to special heirs, as, for example, the heirs of the vassal's body, and should all these heirs fail, the lands will fall to the vassal's nearest heirs-general; and, supposing no one can establish a right as heir, the lands will fall to the Crown as ultima hæres. They do not revert to the superior, without a special clause in the charter to bring them back. In examining charters framed according to the older form, we occasionally find a repetition of the destination to heirs in the executive clauses then in use, viz., the obligation to infeft, and the precept of sasine; though these clauses need not have contained more than a reference to the destination, as in the dispositive clause. Such repetitions were rendered obsolete by the introduction of the statutory forms annexed to the Conveyancing Acts of 1845 and 1847; and now the obligation to infeft and the precept of sasine are not even necessary clauses in the charter.1 Whilst they were in use, in their older form, they were a source of error, as discrepancies occasionally crept into them. But, where the clauses respectively were disconform to each other, the dispositive was the ruling clause. Thus, where the fee of the lands was, by the dispositive clause, given to A., and the precept of sasine directed sasine, or delivery of the fee, to be given to B., the right of fee was held to be in A. The disposition, as regarded A., was held to be a conveyance without precept of sasine; and, though sasine passed on such precept in favour of B., the fee was not thereby vested in him; because the preceding act of disposition was to A., and not to him. Again, when the disposition was granted to A., and the heirsmale of his body, and one of the executive clauses was in favour of A., and the heirs of his body,-which last, if standing by itself, would have meant heirs-general of the body,-the dispositive overruled the other clause, and excluded the heirs-general of the body of A.; but, where the dispositive clause in an entail was in favour of A., and the executive clauses were in favour of the said A., and the heirs-male of his body, there being nothing positively inconsistent between the two, the executive were allowed effect, as supplementing the dispositive.* 2 1 21 & 22 Vict. c. 76, s. 5. 2 Shanks, 27th Jan. 1797, M. 4295; Ross's L. C. i. 42. 3 Forrester, 11th July 1826, 4 Sh. 831. 4 Sutherland, 26th Feb. 1801, M. App. voce Tailzie, No. 8; Ross's L. C. i. 45. |