(13.) Securities for repairs on subjects in burghs constituted by jedge warrants of the Dean of Guild.'(0) 677. What is the effect of a stipulation in articles of roup, that the purchaser shall be satisfied with the title as it stands? (1) Such a stipulation is effectual and binding on the purchaser where the title is feudally defective only, as the matter resolves into a question of expense. (2) But it is not binding where the title is radically bad, the substantial right to the property being wanting; because the mere exposure of a property for sale implies a guarantee that the exposer has the right." 678. A purchaser, who was taken bound to relieve the seller of the sum in an heritable security over the property, having been sequestrated; Is the creditor in the security entitled to rank on his estate? State the reason. No; because the purchaser's obligation was not such as to make him personally liable to the holder of the security.3 [679. What alteration on the law as to purchaser's obligation to heritable creditors was made by the Conveyancing Act, 1874? (1.) That when an agreement to that effect appears in gremio of the conveyance, an heritable security with its personal obligations shall transmit against the purchaser, § 47. (2.) Schedule K provides the means of making the personal obligations effectual against the purchaser.] 680. Where the lands purchased are liable in real warrandice of other lands, is the purchaser entitled to insist for a discharge of that burden? Yes; unless the title to the principal lands is amply secured by prescription.* 1 Ersk. 3, 1, 34. 2 Anderson, 4th Dec. 1818, F.C.; Carruthers, 26th May, 1826, 4 S. 34; Sorley's Trs., 14th Feb. 1832, 10 S. 319; Menzies Lect. 831 (883). 3 Kippen, 24th Feb. 1852, 14 D. 533. 4 Durham's Trs., M. 16641. (0) Also minorities that may fall to be deducted from periods of prescription. 681. Where the missives contain a stipulation that the price is to remain a real burden on the property, but the seller dies before the purchaser's title was made real; Whether is the price heritable or moveable? The price is heritable destinatione; the matter depending on intention, which in this case is sufficiently expressed by the stipulation in the missives that the price was to remain a real burden.1 [By the Consolidation Act, 1868, as explained by the Conveyancing Act, 1874, § 30, real burdens are now moveable as to succession.] 682. May the purchaser reject a title, originally limited or defective, on which prescription has run; or if the seller absolutely warrants the subject? (1.) The purchaser may reject a defective title, although prescription has run on it; because the course of prescription may have been interrupted. (2.) It is not a good answer that the seller absolutely warrants the subject; because warrandice is merely personal. 683. Was a seller bound to enter with the superior before dis poning to a purchaser? (1.) Where the seller was infeft on a disposition, with an alternative holding from his own author, who was alive and entered, the purchaser could not insist on the seller's entry, because he might complete a public title, if he chose, at an expense not greater than if the seller were entered. (p) 1 Mead, 27th June, 1828, 6 S. 1034. 2 Nairne, M. 14169; Durham's Trs., M. 16641. (p) So far as the expense of entry is concerned, the purchaser would probably not be affected one way or other whether the seller was or was not entered. The reason rather seems to be because the purchaser cannot be called on to enter, and he is secured by his alternative holding; but some conveyancers are of opinion that even where the seller is infeft, as stated, and the fee is full, but not in his person, then, if there be a prohibition of subinfeudation, he is bound to enter to protect the title from challenge. This might, so far as the superior is concerned, depend on whether or not he was entitled to demand an entry from each purchaser, because otherwise he would have no interest, and might therefore have no right to enforce the prohibition. See Tailors of Aberdeen, 13 S. 226; 2 S. & M'L. 609; 1 Rob. 296. (2.) But if the subjects were in non-entry by the death of the last-entered vassal, the seller must enter with the superior prior to granting the disposition; because the purchaser was not obliged to accept of a title which would force him immediately to enter as a singular successor.1 [See Straiton Estate Co., 8 R. 299, as to incidence of a casualty in the present state of the law.] V. DISPOSITION. (r) 684. What is meant by public and base infeftments? Infeftments granted by vassals holding immediately of the Crown were originally called public; and those which flowed from their vassals were termed base, as being of a lower description, and further removed from the Crown. By a public infeftment is now meant an infeftment a me, to be held of the disponer's superior ; and a base or subaltern infeftment is de me, one holding of the disponer himself, 685. What is the effect of a completed conveyance de me, and of a completed conveyance a me? (1.) The conveyance de me creates a sub-vassalage, the disponee being vassal to the disponer, while the latter, continuing to hold of his superior, is divested only of the dominium utile. (2.) The conveyance a me, when completed, produces a change of vassals, the disponee being substituted in the place of the disponer, who is entirely divested." 686. Explain the operation of the disposition with a holding a me vel de me. It enabled the disponee, by taking infeftment on the conveyance, or recording it in the Register of Sasines, at once to complete a base right or perfect feudal title to the dominium utile, held in blench of the granter in virtue of the de me holding, and convertible at any time by the superior's confirmation, in virtue of the a me holding, into a holding of him, so as to substitute the disponee exactly in the place of the disponer.3 1 Gardiner, M. 15037. 2 Menzies Lect. 606 (636). 3 Ersk. 2, 7, 16. (r) Some questions relating to Dispositions will be found in branch II. of this Part, "Original Charter." 687. What led to the cessation of subaltern rights in Eng land? The statute of Edward I., Quia emptores terrarum (1290), prohibited the creation of subordinate feus of a rank inferior to those held immediately of Crown vassals; and the provisions of the statute were extended by subsequent Acts to the immediate vassals of the Crown.1 688. Was subinfeudation anciently prohibited in Scotland? In early times subinfeudation was permitted, as this form of conveyance was not regarded as an alienation. It is said that subinfeudation was prohibited by an Act passed in the reign of Robert I., containing provisions similar to those of the English statute Quia emptores terrarum, but the former statute, if ever it was in observance, fell soon into disuse." 689. Enumerate the leading statutory relaxations of the feudal rule against alienation of the feu. (1.) 1469, c. 36, enabling creditors-apprisers to obtain an entry from the debtor's superior on paying a year's maill, as the lands are set for the time. (2.) 1672, c. 19, extending the same power of obtaining an entry to adjudgers. (3.) 1681, c. 17, and 1690, c. 20, entitling purchasers of bankrupt estates at judicial sales to an entry on the same terms as adjudgers. (4.) 1685, c. 22 (Entail Act), enabling proprietors to entail their lands, and substitute heirs, uncontrolled by the superior. (5.) 20 Geo. II. c. 50, enabling heirs and singular successors holding a procuratory of resignation to compel the superior to give an entry by charter of resignation, on payment of the fees and casualties. (6.) 10 & 11 Vict. c. 48 (Lands Transference Act), § 6, enabling heirs and disponees to enforce an entry by charter of confirmation.(s) 1 Menzies Lect. 583 (609). * Ersk. 2, 7, 8. (8) Professor More says, in reference to this enactment—“This is a very important provision, because it enables a party, where subinfeudation is pro (7.) 21 & 22 Vict. c. 76 (Titles to Land Act), $$ 7 and 9, by which superiors are bound to grant writs of confirmation (t) and resignation. [(8.) Conveyancing Act, 1874, § 22, by which it was made incompetent in future feus to prohibit subinfeudation or conveyances with an alternative holding.] 690. How did a purchaser complete his title before the Act 1469, c. 36? Before the Act 1469, a purchaser took two charters from the seller, one a me and the other de me. On the latter he immediately took infeftment, and then brought an action of maills and duties against the tenants, which was equivalent to possession, thus securing himself in the property, while the former charter a me afforded the means for an entry with the superior, when his consent was obtained.1 691. By what means did purchasers compel an entry with the superior after the Act 1469, c. 36? Where the superior refused to receive the purchaser, the seller granted to the latter a bond for a sum exceeding the value of the lands, upon which he led an apprising, and, in the character of a creditor, the purchaser compelled the superior, in virtue of the statute, to give him an entry as a vassal-appriser." 692. What was the criterion of preference of base rights before the system of registration was established; and what is now the criterion? Before the establishment of the registers for publication, the criterion of preference of base rights was their date; but as they might be kept secret, and facilities were thus afforded for fraudu 1 Duff's Feud. Conv. 144. 2 Ersk. 2, 7, 6. hibited, to grant an effectual disposition containing the alternative holding, which, being operative against all parties except the superior, he himself may now be compelled to confirm the right when required to do so;" Lect. i. 493: but it may be doubted whether this view is well founded, because, though the terms of the enactment are very broad, there is a proviso that every superior, when charged to give such entry, may in a suspension "show cause why he ought not to be compelled" to do so, and it might be a sufficient cause that the infringement of the prohibition of subinfeudation was injurious to his interests. (t) "Provided always that the party requiring such confirmation shall be entitled to demand an entry by confirmation." See note (s), supra. Y |