703. What warrandice are trustees bound to give to a pur

chaser ?

ing in the relation of superior and vassal. In addition to the plea, that the obligation of relief is transmitted by a general assignation of writs and evidents "and whole clauses thereof," it is maintained for the vassal, that the obligation being intended to be permanent, and so intimately connected with the subject of the feu that it can be available, as a profitable obligation to no one but him, it forms one of the condi

tions of the feu-right, remaining in all time pleadable by the vassal against the superior, not as specially transmitted, but on the ordinary principles of mutual contract, and through the mere force of their relation to one another, as superior and vassal. The case has been remitted by the judges of the First Division for the opinion of the whole Court.(d)

occurring as it did in a feu-contract, was to be regarded as the counterpart of the vassal's obligations and an inherent condition of the feu. The judgment was affirmed by the House of Lords, 27th March, 1863, 4 M'Q. 499, 1 MP. 25. It was also held in this case that the obligation might be enforced beyond the value of the superiority. The result of the cases referred to seems to be

1. That where the obligation is perfectly collateral to the subject-matter of the contract, and the granter is thereby divested of that subject-matter, so that there arises out of the contract no privity of estate between the contracting parties, the obligation is merely personal, and not transmissible, except by special assignation, and any one claiming under it must show that it is so vested in his person. Of this the case of Horn (supra, note 4) was an example. There the contract was one of absolute sale, after which the seller and obligant ceased to have any connection with the lands, and the conveyance constituted no relation between the parties in reference to the lands, so that the obligation was merely personal, and transmissible only in the same way as other simple personal obligations.

2. That where the obligation forms a condition in a contract in which it is the counterpart of other obligations undertaken by the other contracting party, and where the contract does not divest the obligant of the lands, but leaves him with an interest and estate therein, and constitutes between the parties the relation of superior and vassal, so that there is a privity of estate between them, the right transmits to the vassal's successors in the feu, and can be enforced against the superior at all events where he is the personal representative of the granter of the obligation. This was the case of Stewart, supra, note 4 (see infra, 4); but—

3. That even where the obligation is in the original feu-right, if it is sought to be enforced against the personal representative of the granter, but who is not the superior, the vassal must show that the right has been transmitted to himself by assignation. This was the case of Sinclair (supra, note 4), where the action was brought against M. of Breadalbane, who was the personal representative of the granter, but was not superior of the lands, the

Warrandice from fact and deed qua trustees, with an obligation on the heirs and representatives of the truster to warrant the conveyance at all hands, and they may be required to grant an assignation to the clause of warrandice in the trust-deed, if it contains such a clause.

704. In what cases is it unnecessary to record the whole conveyance in order to obtain a real right; and how is such partial registration effected?

(1) Where a conveyance of lands is contained in a deed granted for further purposes and objects, such as a marriage-contract, deed of trust, or deed of settlement, it is unnecessary to record the whole deed; but it is sufficient to expede and record a notarial instrument, setting forth generally the nature of the deed, and containing at length those portions of it by which the lands are conveyed, and the burdens are imposed.

(2.) Where a deed conveys separate lands, or separate interests in the same lands, to the same or different persons, it is sufficient to expede and record a notarial instrument, setting forth generally the nature of the deed, and containing at length the parts of the deed by which particular lands are coveyed to the person in whose favour the instrument is expede, and the part which specifies the nature and extent of his right and interest with the real burdens, if any. [By section 17 of the Consolidation Act, 1868, it is now competent to record a notarial instrument on any disposition.]

right having been alienated, and where the plea of want of title by special assignation was sustained.

4. From some observations in Stewart in House of Lords, it might seem that the question as to the effect of the superior being a singular successor was intended to be reserved. The point might have been tried, and possibly might have led to a different result in Sinclair, where Sir Ralph Anstruther, the superior at the time, was made a party to the action, but against whom the pursuer, for some unexplained reason, did not insist. As, however, a vassal has been allowed, without a special title (Stewart), to enforce the obligation against the representative of the granter, being the superior, while as against the representative, not being the superior (Sinclair), he was not allowed to do so, it may probably be assumed that the obligation will transmit and be enforceable against the superior, though not the representative of the granter, and that in regard to it the superior and vassal for the time will always stand in the same position to each other as the original parties did, with a privity of estate between them. See Campbell's Trs., 17th Nov. 1865,

4 M'P. 50.

(3.) It is competent to insert in a conveyance, immediately before the testing clause, a clause of direction specifying the parts which the granter desires to be recorded, and the recording of such parts, together with the clause of direction, and the testing clause, and a warrant of registration, has the same effect as if a notarial instrument containing such parts had been expede and recorded in favour of the party in whose behalf the conveyance is presented. But the whole conveyance may be recorded (e) or a notarial instrument expede and recorded, notwithstanding such clause of direction, provided the notarial instrument contains the whole parts directed to be recorded.' [Consolidation Act, § 12.]

705. What should be the terms of the warrant of registration, when the deed contains a clause of direction?

Register on behalf of A B, in terms of the within written clause of direction, and of the relative provisions of the Titles to Land (Scotland) Act, 1858. (e) [Schedules F, Nos. 1 and 2, of the Consolidation Act give forms of the clause and warrant of direction.]

706. Where the disponer has obliged himself and his heirs to infeft the disponee by two manners of holding, and the disponee has taken infeftment on the disposition; May the disponer's heir be required to make up a title so that the disponee may continue to hold of him?

No; because the granting of the disposition containing warrants enabling the disponee to take the disponer's place is full implement of his obligations to the disponee."

(See Completion of Disponee's Title. )

1 21 & 22 Vict. c. 76, §§ 2, 3.

2 Dundas, M. 15035.

(e) This is now regulated by the Titles to Land Act, 1860, § 25, which provides that if the clause of direction is intended to be acted on, there shall be "express reference thereto in the warrant of registration, if any, which, in terms of the recited Act or this Act, is otherwise required to be indorsed on such deed or in a separate warrant of registration, &c.; "and in the absence of such express reference," &c., "such deed shall be engrossed in the register as if it had contained no clause of direction."

VI. CHARTERS OF CONFIRMATION AND RESIGNATION.

[The fourth section of the Conveyancing (Scotland) Act, 1874, abolished charters and writs by progress, except charters of novodamus or precepts or writs from Chancery or of clare constat, or writs of acknowledgment. It has been thought better, however, to retain the following questions.]

707. What were the original purposes of the charter of confirmation; and what is its modern use?

The form of confirmation was anciently used by barons and prelates to ratify the grants of their predecessors, and likewise to express the superior's consent to subinfeudation. The modern purpose of the charter of confirmation is to dissolve the superior's relation to the vassal, and to substitute the new vassal in his place.1

708. Explain the difference in effect betwixt confirmation of an infeftment de me, and of an infeftment a me.

(1) Confirmation of an infeftment de me (now obsolete) merely protected the sub-vassal from casualties inferring forfeiture of the feu, incurred by his immediate over-superior; but it did not raise the sub-vassal into the vassal's place. (2) Confirmation of an infeftment a me completely divested the former vassal and invested the new vassal in his full right and place, the confirmation operating retro to the sasine; thus validating not only the title confirmed but all subsequent (ƒ) precepts of sasine and procuratories of resignation, with the instruments following upon them.

709. What is the effect of a charter of confirmation which confirms only the lands and the last sasine, there being a series of unconfirmed rights?

It operates as a confirmation in favour of the grantee, so far as regards the lands, of the whole dispositions and instruments of

1 Ross Lect. ii. 257; Duff's Feud. Conv. 212.

(ƒ) There seems to be some mistake here; a confirmation of a particular title would not validate any other subsequent in date to it, nor, until the 10 & 11 Vict. c. 48, did it validate titles prior in date.

sasine, and other deeds, instruments, and writings of and concerning the same, necessary to be confirmed, in order to complete the grantee's investiture in the lands as immediate vassal of the superior; and that although such deeds, instruments, and writings may not be enumerated or set forth in the charter.1(g) [Consolidation Act, 1868, § 115.]

710. In a competition of rights completed by confirmation, on what date does the preference depend?

In Crown charters it is the date on which the Great Seal is affixed; (h) and in charters by subject-superiors, the date of delivery of the charter.3 (i) [The provisions of the 1860 Act mentioned in the note are substantially re-enacted by § 6 of the Consolidation Act, 1868.]

711. What were the provisions of the Titles to Land Act, relative to entry by confirmation, where the lands are held of a subject-superior?

(1.) Where a confirmation of any deed or instrument recorded

1 10 & 11 Vict. c. 48, § 7.

2 Ersk. 2, 7, 14.

3 Dalziel, 2 Br. Sup. 81.

(g) This is not quite accurate. The provision of the 10 & 11 Vict. applies only to the case where the charter confirms the lands, "and the instrument of sasine in favour of the person receiving such charter." Where therefore the person entering was not himself infeft, as in an entry by resignation and confirmation, it was necessary to confirm all the prior titles; and it is important to keep this in view in examining titles made up under that Act as well as those made up prior to its date.

(h) By 10 & 11 Vict. c. 51, § 15, it was provided that "the date of sealing shall in all cases be held and expressed to be the date of the charter," and, by the Titles Act, 1858, § 32, sealing is declared unnecessary unless when required by the receiver of the charter (infra, note (p), p. 354); the date therefore now regulates the preference.

(i) This was the rule prior to the passing of the Titles to Land Act, 1860; but it is by that Act provided (§ 36) that where no manner of holding is specified, and the investiture prohibits subinfeudation, "the conveyance or instrument shall, if an entry" "be expede with the superior within twelve months from the date of such conveyance or instrument, have the same preference in all respects from the date of recording in the appropriate register of sasines the conveyance or instrument as if the same contained an a me vel de me holding, and the investiture did not contain any prohibition against subinfeudation or against an alternative holding."