tor to obtain a charter from the superior, I do not see how, in a question with such third party, the first disponee could found upon his title, with double manner of holding, to any effect, or could complete his title and exclude such third party. His right, as a holding of the disponer, is a subfeu, which is prohibited; as a holding of the superior, it is valueless until confirmed; and the superior, if he has granted confirmation of an absolute disposition, cannot grant a second confirmation of a right of the same nature; and, if he has granted confirmation of a limited right in security, his second confirmation can only be granted under the burden or exception of the first. It is proper, therefore, that, in all cases where the prohibition to subfeu is made a real condition of the feu, confirmation be obtained by every disponee from the superior. A provision intended for the protection of purchasers, in connexion with the prohibition to subfeu, is inserted in the Titles Act of 1860. But it is liable to be defeated in the case of second sales to bond fide purchasers, as shall be afterwards explained. In Coutts' case it was shown to be necessary that there should be an interest in the superior to enforce a restriction; and it has been found that a prohibition against digging stones, or using the ground in any other way than by the ordinary labour of plough and spade,' is inept, as against a singular successor.2 AGENT. Not only must the superior have an interest, but the condition must SUPERIOR'S not be such as to create a monopoly. In some feu-rights it is provided that not only all future charters, but all deeds of transmission by vassals, with the sasines thereon, shall be prepared by the superior's agent. A condition to this effect was at first sustained here;3 but on appeal to the House of Lords the case was remitted for consideration; and the superior's claim was abandoned.5 Such clauses, of which examples are still to be met with, appear objectionable in principle. An endeavour has been made to show that the superior's interests derived protection from having the deeds of transmission prepared by his own agent; but every legitimate interest of the superior can be protected by properly framing the charter, and securing that the same is duly recorded by, or on behalf of, the original grantee, and that in subsequent transmissions the conditions are. duly engrossed or validly referred to. The nature of the provisions to be introduced in the charter, for accomplishing these objects, has been already considered. But, in town or villa feus especially, further protection may arise to the superior by making entry-money due in all cases at stated intervals, from eighteen to twenty-five years each, and without reference to the occurrence of deaths, sales, or transfers. In such cases the entry-money should be expressly declared a real burden on the lands; or it may be provided that the entry-money shall be exigible simply on account of the succession of an heir, or the transfer to a pur 1 Titles Act of 1860, s. 36. 'Heriot's Hospital, 30th July 1773, M. 12,817; affirmed 3d March 1774. 3 Campbell, 28th May 1823, 2 Sh. 341. LIMITATIONS CASUALTIES NON-ENTRY. chaser or disponee, and without reference to the question whether the lands are or are not in non-entry, and whether the case is one of the transmission of a real or of a personal right. This appears to be an excellent provision, because it is complete, and because it raises no agents' question. It affects the patrimonial rights of the superior and vassal, but in a perfectly legitimate way, as it only secures to the superior what he is entitled to by the constitution of the feudal contract. I now pass to the consideration of the second branch or class of conditions in the original charter; viz., those which modify the legal rights of the superior; and the mode of making the same effectual against singular successors in the superiority. It will be convenient to state, in the first place, what are the ordinary legal rights here referred to; in other words, to explain what are the subsisting incidental rights or casualties attached to an estate, or fee, of superiority. The subsisting casualties of superiority are- 1. Non-Entry. It is a fundamental principle of the feudal system, that every superior is entitled to have a vassal entered in the feu. This is, no doubt, directly traceable to the ward-holding, where the condition of the grant was military service, which required the existence of a vassal capable of performing the service, and which gave the land or its fruits to the superior during the vassal's nonage. For early times, we may refer to the Consuetudines Feudorum, which is the common institute of the feudal law, and is known also as the Book of the Feus. It will be found at the end of the Corpus Juris. We there learn that, if the heir of the vassal neglected to enter with the superior for year and day, his right was eo ipso forfeited; the lands he was entitled to hold reverting to the superior in permanent right. The superior is still entitled, in strict law, to take possession of the lands, to the exclusion even of tenants holding leases, and of sub-vassals, creditors, and all others, however complete their rights, if the heir, after being cited to enter by a regular process, shall without cause fail to do so; or, in feudal language, if he is contumacious. In the exclusive nature of this right you will see a resemblance to the right of the superior to the possession of wardlands during the heir's minority, to the exclusion of creditors and others, to whose rights he had not been made a party. But cases in which the superior's extreme right, in virtue of non-entry, comes into operation, are now almost unknown. The claim, in its severity, is regarded as odious; and any reasonable grounds on the part of the heir for his delay in entering, and in satisfying the superior's right to have a vassal, will exclude the extreme claim even after citation.2 In practice, the casualty of non-entry consists, in proper blench-holdings, of a very moderate payRETOUR DUTY. ment, known as the 'retour duty,' or 'new extent' of the lands; being the valuation put upon the lands in the 14th century, or gradually adopted thereafter. Where the lands are held blench in place of ward, 1 Consuetudines Feudorum, ii. 24. 2 Robin, 13th June 1823, 2 Sh. 404. the non-entry duty consists of one per cent. on the old valued rent, at which the lands were assessed for public taxes in or about the time of Cromwell. This payment falls due termly, at Whitsunday and Martinmas, during the period of the non-entry. In feu-holdings, the nonentry duty is the feu-duty; and practically it produces nothing to the superior, because the feu-duty is payable at any rate; and non-entry duties are not payable over and above. The non-entry is also excluded if the superior's own title is not completed; because then the superior cannot validly grant an entry, and delay in taking the entry is not attributable to the vassal. The superior is excluded also if there is any liferent vassal in possession, under charter from the superior, who then has a vassal in the liferenter; likewise as to a married woman's lands, when a surviving husband is in possession, in virtue of his courtesy,— then, also, there is a vassal, the husband possessing in virtue of his wife's infeftment; or the reason may be, that the heir is himself excluded from possession. Exclusion, to the extent of a third, takes place when a widow is in possession of her deceased husband's lands in virtue of her terce. The possession of the superior, however, even when in virtue of a decree of non-entry, can be terminated by the heir coming forward and obtaining an entry. The superior's right of possession, in that case, is not permanent. Non-entry has no place in burgage-holding; because the burgh or corporation, which never dies, is the vassal, and the lands are thus never in non-entry. 2. Relief. This is the fine, or casualty, payable by the heir of a RELIEF. vassal to the superior on the heir's succession to lands held in feu or blench-farm; and on his relieving the lands out of the superior's hands, into which they are held to fall by the last vassal's death. Anciently, this casualty was said to be given by the heir in redemption of the feu, afterwards in renovation of it,-terms which Dalrymple, in his Essay on Feudal Property, says contain a solid distinction.1 At first, the effects of the old principle so far remained, that, when the feu was renewed in the person of the heir, it was supposed to be in consequence of a voluntary agreement betwixt the overlord and him; then the payment was said to be given in redemption; but, in after periods, it was conceived to be in consequence of an absolute obligation upon the overlord to renew. Thence it was said to be for renovation. The casualty was known in ward-holdings, in which it was the payment made by the heir for relieving his lands out of the superior's ward. The amount of the relief was originally a year's rent of the lands ; but it has long been restricted to a year's feu or blench duty, as the case may be, over and above the blench or feu duty of the year. This casualty is exigible whether stipulated for in the charter or not,—a point formerly of some doubt, but now settled as here stated. 1 Dalrymple on Feudal Property, p. 47. COMPOSITION. IRRITANCY ob non solutum canonem. 3. Composition, or the entry-money, or fine, payable by a stranger or singular successor, requires here to be noticed; for, though in a very strict sense it is not a proper feudal casualty, it is commonly understood and spoken of as such in modern phraseology. When the Legislature made it compulsory on superiors to enter persons having judicial titles, a year's rent of the lands was declared payable to the superior as the consideration for his granting the entry. The Acts ordaining entries to be given to ordinary purchasers provide for the payment to the superiors of the fees or casualties which they are by law entitled to receive. This general expression may have arisen because there was no enactment fixing the rate of entry-money in such cases, and the early practice was not altogether uniform. But, more probably, it arose from the fact that, in some cases, the entry-money payable by singular successors was matter of special agreement, fixed, or, as it is technically called, 'taxed,' by charter; and it was not intended to interfere with private arrangements so made. For a long time, however, the rule in practice, with reference to ordinary purchasers, or other singular successors, has been the same as that established by Statute as relative to judicial purchasers; and all have been entered as vassals on payment of one year's rent or value, as the lands are set, or-if not in the hands of third parties or tenants are worth for the time; a payment which, on account of its origin in the system of compounding formerly explained, and likewise from a corresponding term in use in England, has acquired the name of composition.' Composition is payable as well in blench as in feu holdings. The manner in which it is to be estimated, in particular cases, and its other peculiarities, will be stated in connexion with the subject of the transference of feus. 4. There is another incidental right, peculiar to feu holdings, which is frequently classed among casualties of superiority, though more properly it is a contingent irritancy for enforcing payment of feu-duties, rather than a feudal casualty. It was introduced for the above purpose by the Act 1597, cap. 250, which provides that, if the feu-duty shall remain unpaid for two whole years together, the vassal shall tyne or lose his feu, in like manner as if his charter contained a clause declaring the feu to be null, upon such failure in payment. As a general rule, therefore, every charter of lands held feu now embraces, by force of this Statute, a clause to the above effect. Sometimes, also, charters contain express clauses to the same effect; but, on the other hand, they sometimes contain an express renunciation of the statutory provision. When the nullity, or irritancy, is incurred, it does not operate to extinguish the vassal's right ipso facto. In order to enforce the nullity, the superior must bring an action into Court, called a declarator of irritancy, or tinsel of the feu, ob non solutum 1 Lord-Justice Clerk Hope in Stirling, 14th February 1842, 4 D. 684; Lord Brougham in same case, affirmed 4th Sept. 1844, 3 Bell's App. 128; Edinburgh Gas Light Co., 5th July 1843, 5 D. 1325. canonem. And the irritancy, whether founded on the Statute or on an express clause in the charter, can be purged at the bar,-that is to say, the vassal can exclude the forfeiture by paying the feu-duty in arrear in Court at any time before the decree against him is extracted.1 But, after decree in foro, the superior's right is permanent. If the vassal allows decree to pass in foro, he is not entitled afterwards to reduce it upon tendering payment of the arrears.2 Where the irritancy is conventional-that is, is expressed in the charter,-it was formerly held that the vassal could not purge at the bar, unless he could give a reasonable excuse for his previous delay. But that rule appears to be now altered; and charters, with and without express clause, seem to stand on the same footing in this respect. If, however, the superior betakes himself to this remedy, he cannot claim the arrears of feu-duty. The object of the Statute is to give him back the lands, in case the vassal shall fail to pay the feu-duty, that is, to fulfil the condition on which he holds them.5 3 4 ESCHEAT. Lastly, there is attached to the right of superiority in feu and blench LIFERENT holdings the casualty of liferent escheat, at one time very oppressive, but now almost unknown in practice. Formerly, whenever a vassal was denounced rebel, simply for non-payment of a debt, he was regarded as civilly dead, and his lands fell, or were escheat, to the superior during his lifetime. By the Act 20 Geo. II. cap. 50, sect. 11, this penalty was abolished when the denunciation was for a civil debt or obligation. But upon denunciation for a crime, if the vassal remain at the horn,that is, a rebel,-unrestored or unrelaxed for a year and day, he is still held civilly dead, and the liferent of his lands falls to the superior, excepting in cases of treason. In these, the absolute fee of the vassal's heritage is forfeited to the Crown. The casualty of liferent escheat arises also upon the vassal's receiving sentence of death and escaping, as by the sentence he is disqualified from holding the feu. When the casualty falls, the right of the superior to the vassal's lands exists during the vassal's lifetime. The vassal, however, still has right to the fee, of which he may dispose at his pleasure, provided he does not prejudice the party entitled to the liferent escheat." The subsisting casualties of superiority, therefore, are―(1.) Nonentry, payable with reference to the period during which the superior is without a vassal. (2.) Relief, or the entry-money payable by the heir on his being received as the vassal. (3.) Composition, or the entry-money payable by a singular successor, or stranger, on his being received as vassal. (4.) The forfeiture, or irritancy, arising in lands held in feu 1 Campbell, 16th July 1777, M. 7252; Campbell, 7th March 1794, M. 321. 2 Ballenden, 6th July 1792, M. 7252. 3 Wedderburn, 13th Feb. 1666, 2 Br. Sup. 138. 4 Lord Corehouse, and other Judges, in Coutts, 3d Aug. 1840, 1 Robin. App. 316. 5 M Vicar, 10th Feb. 1749, M. 4180; Magistrates of Edinburgh, 16th May 1834, 12 Sh. 593. 6 M'Rae, 22d Nov. 1836, 15 Sh. 54; affirmed 27th June 1839, M'Lean & Robinson's App. 645. |