(2.) Where the heir's service and infeftment are reduced.

(3.) The lands continue in non-entry where, after the vassal's death, the heir or a singular successor has obtained a precept or charter(h) from the superior, but delays to take infeftment on it, or to record it in the Register of Sasines.

(4.) It is said that the non-entry duties are exigible where the vassal has resigned in favorem, but the new vassal does not take infeftment on the charter.1

564. In what circumstances was non-entry excluded?

(1.) During the life of the last entered vassal, although he has been divested of the dominium utile by a feudalised convey

ance.

(2.) Where the lands are subject to terce, non-entry is excluded after the husband's death to the extent of a third during the life of the widow; and where subject to courtesy, it is excluded after the wife's death as to the whole during the husband's life.

(3.) By an infeftment in conjunct fee and liferent, granted by a husband to his wife, and confirmed by the superior, non-entry is excluded until the death of the survivor.

(4.) Where the lands have been conveyed by the fiar under burden of a reserved liferent, non-entry is excluded during his life. (i)

(5.) Non-entry duties are not exigible when the superior is in non-entry, or has refused to give an entry.

(6.) It is doubtful whether non-entry is excluded by a sub-feu confirmed by the superior."

1 Ersk. 2, 5, 30; 2, 7; 24; Bell's Prin. 705.

2 Ersk. 2, 5, 44, 45; Duff's Feud. Conv. 477.

provisions of the Act above referred to are extended "to all trusts for the maintenance, support, or endowment of ministers of religion, missionaries, or schoolmasters, or for the maintenance of the fabric" of places of worship, manses, schools, &c., and declared to apply to the Established and all other Presbyterian churches in Scotland. [See the Consolidation Act of 1868, § 26.] (h) Or writ.

(i) In this case, the fiar being assumed to be alive, the lands are not in non-entry.

II. ORIGINAL CHARTER.

565. Enumerate the clauses of the charter.

(1) The narrative, containing the names of the granter and grantee, and cause of granting; (2) the dispositive clause, containing the words of conveyance [the word "dispone" is not now essential, though in practice retained (Conveyancing Act, 1874, § 27)], the destination to heirs, the description of the subjects, and the reservations, burdens, and conditions; (3) the term of entry; (4) the tenendas; (5) the reddendo; (6) assignation of writs;(k) (7) assignation of rents; (8) obligation to free and relieve the grantee of (1) public burdens; (9) clause of warrandice; (10) clause of registration; (11) precept of sasine (now unnecessary); (12) testing clause.1

566. What is the ruling clause of a conveyance of heritage,

and what is essential in it ?(m)

The dispositive is the ruling clause; it must contain words of conveyance de presenti, and the word "dispone" appears to be indispensable. (m) [Section 27 of the Conveyancing Act, 1874, enacts that "it shall not be competent to object to the validity of any deed or writing as a conveyance of heritage, coming into operation after the passing of this Act, on the ground that it does not contain the word 'dispone': provided it contains any other word or words importing conveyance or transference, or present intention to convey or transfer."]

567. What is the effect of the omission of the words "heirs and assignees" in the destination of the charter?

1 Jur. St. i. 11. 2 Ogilvie, M. 3340, aff. 1 Ross Lead. Cas., (n) 1 et seq.(0)

(k) But only to the effect of maintaining and defending the vassal's right. (7) This obligation should include also feu-duties and casualties payable to the granter's superiors.

(m) This question and answer altered from original.

(n) Land Rights, 13 et seq.

(0) See also Galloway, 12th Jan. 1802, F.C., and Lord Meadowbank's opinion, reported 3rd March, 1815, Hamilton, F.C. :-"If there is a word in Scots law language which is technical, it is dispone," &c.; also Crawford, 14th Jan. 1774, and Henderson, 10th June, 1795, F.C.

Anciently, fees were personal, unless heirs were expressed, and inalienable without the superior's consent, but they are now hereditary and transmissible without express mention of heirs and assignees.1

568. Where the real proprietor executes only as consenter a charter by one who had no right to the lands, Is the deed an effectual conveyance? State the reason.

It has been held that the consent of the proprietor to a disposition a non domino implies a conveyance of the property, on the principle that such consent can have no other intention or meaning; but this doctrine is doubted by Baron Hume;3(p) and in any view, it would be highly improper to take a charter in that form, because there is no implied warrandice against a consenter, and consequently he is not barred from insisting in rights which may subsequently emerge in his favour, although injurious to the grantee.*

569. What is the effect of a consent by an heritable creditor in a conveyance by the true owner?

Consent by an heritable creditor imports only non repugnantia, and that he will not, on the ground of the debt, compete with the purchaser, but allow him a preference to the consenter's rights, though otherwise they might be preferable to those acquired by the purchaser. But it does not imply a conveyance (r) of the creditor's debt to the purchaser, or a right to use it in support of his own title."

570. A married woman, who had consented to her husband's disposition of lands to a purchaser, subsequently

1 Duff's Feud. Conv. 61.

2 Buchan, M. 6528; Mounsey, 29th

Nov. 1808; Hume 237.

3 Hume 237.

4 Stuart, M. 7762; Menzies Lect. 513 (531).

5 Buchan, M. 6529.

(p) The doctrine is expressly laid down by Stair, 2, 11, 7, who refers to Craig; and Hume, in the passage referred to, concludes—“ Probably, however, the present case, joined to Lord Stair's opinion, and that also of Kilkerran, who transiently delivers the same law (p. 279, No. 2), ought to lay this question to rest."

(r) Nor an obligation to grant a conveyance.

acquired from a third party a preferable right of liferent, secured out of the same lands upon which she was infeft before the disponee; Is her right preferable to the purchaser's?

The wife's liferent is preferable; because being a consenter she was not the author of the purchaser's right; and consequently the rule jus superveniens auctori accrescit successori, is not applicable.1

571. Where the disponer alleges, after delivery of the charter, that the price has not been paid, How is the allegation to be proved?

It can be proved only by the writ or oath of the disponee;" but if the disponee admits that the price was not paid at the time, he must prove actual payment.3

572. On the failure of heirs, does the estate revert to the

superior?

On the failure of heirs the estate falls to the Crown as ultimus hæres; the superior, by completion of the vassal's title, being for ever divested of the grant, unless it contains a clause of return.

[573. State generally the provisions of the various Titles Acts, 1874, with respect to the description of the lands in

conveyances.

The first enactment allowing description by reference was in the 1858 Act. The leading requisites in it were specification of—(1) "The leading name or names, or other short distinctive description; (2) the county or parish, or supposed parish; (3) a reference to a prior recorded conveyance, containing a particular description in the manner prescribed by a schedule to the Act. The Act of 1860 repealed this enactment; made it unnecessary to specify 'the leading name,' &c., and not requisite to give the parish, but

1 Forbes, M. 6524; Stuart, M. 7762.

2 Gordon, 11th June, 1833, 11 S. 696.

3 Hotson, 7th June, 1831, 9 S. 685.

only the county or burgh, and a reference to a recorded deed. The Consolidation Act, 1868, substituted for the provisions of the Act of 1860 the following points :-(1) Some leading name or names, or some other distinctive description; (2) name of county or burgh; (3) reference to a recorded deed or instrument. The Conveyancing Act, 1874, § 61, repeals the provision of the Consolidation Act, and provides that where lands have been particularly described in any conveyance, &c., relating thereto, recorded in the appropriate register of sasines, it is not to be necessary in any subsequent conveyance, &c., referring to the whole or any part of such lands, to repeat the particular description of the lands; but it is to be sufficient to specify the name of the county, and where the lands were held by burgage or by any similar tenure, the name of the burgh and county in which the lands are situated, and to refer to the particular description of such lands as contained in such prior conveyance, &c., so recorded in or as nearly as may be in the form of Schedule (O). The reference in any such subsequent conveyance, &c., is to be held to be equivalent to the particular description contained in such prior conveyance, &c. It is also made incompetent to object to descriptions by reference, on the ground of non-compliance with the repealed section of the Consolidation Act, provided they embrace the requisites of the Conveyancing Act.]

[574. State shortly the provisions of the Consolidation Act, § 13, as to designing lands by a "general name."

(1) Where several lands are comprehended in one conveyance in favour of the same person or persons, it is to be competent to insert a clause declaring that the whole lands conveyed, and therein particularly described, shall be known in future by one general name; (2) on the conveyance containing such clause, or on an instrument following thereon, and containing such particular description and clause, being recorded in the appropriate register of sasines, it is to be competent in all subsequent conveyances, &c., of or relating to such several lands, to use the general name specified in such clause; (3) provided that reference is made in such subsequent conveyances, &c., to a prior conveyance, &c., in which such particular description and clause are contained; (4) provided also that it is not to be necessary in such clause to comprehend under one general name the whole lands

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