723. Enumerate the clauses of an instrument of sasine in favour of a party who had acquired right by disposi

tion and assignation.

(1) The production to the notary of the conveyance containing the warrant of sasine, and also of the disposition and assignation. (2) The narrative of the dispositive clause of the former conveyance. (3) The deduction of the disposition and assignation. (4) The recital of the obligation to infeft, and the insertion of the precept. (5) The giving of sasine in virtue of the precept and transmission thereof; and (6) the testing clause.

724. A, whose title was complete, disponed to B, with obligation to infeft a me vel de me, procuratory and precept, and B was infeft. The lands were afterwards disponed with similar clauses by B to C, who transferred his personal right by disposition and assignation to D; and D entered with the superior by charter of resignation and confirmation. State the contents of the quæqui

dem clause in the charter.

Which lands and others above described, formerly belonged to B, holden by him in virtue of the confirmation hereinafter contained immediately of me as superior thereof, and have been resigned by him into my hands by virtue of a clause of resignation, contained in a disposition of the said lands and others made and granted by him to C, dated the : In and to which

disposition the said D has right by disposition and assignation granted by the said C in his favour, dated, &c.

725. Where a party holds lands in virtue of an unrecorded conveyance, with a holding a me vel de me and precept of sasine; What are the forms of conveyance by which he can transfer his personal right to a purchaser, and how can the latter make his right real?

(1.) Simple assignation of the precept of sasine, and infeftment in virtue of the precept and assignation.

(2.) Disposition and assignation, and infeftment as above.

(3.) Disposition with precept and infeftment, the right of the granter being afterwards completed by infeftment upon the original

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precept, which will render the purchaser's infeftment valid by accretion.(v)

[(4.) Assignation in the form prescribed by the Consolidation Act, § 22, which in substance repeats the provisions of the prior Acts, either separate from or written upon the unrecorded conveyance. The title of the assignee can be completed in either of three modes -(1) registration of the disposition by the proprietor last infeft and assignations, the disposition having a warrant in favour of assignee, and the assignations being docqueted with reference thereto; (2) by recording the disposition along with a notarial instrument on it and the assignations; (3) by registration merely of a notarial instrument on the disposition and transmissions. Jur. Styles, i. 155 to 159.]

726. What is the nature of the conveyance granted by (1) an heir unserved, whose ancestor was infeft, and (2) by one whose ancestor was not infeft; and how does the disponee, in each case, acquire a real right?

(1.) A conveyance by an heir unserved, whose ancestor was infeft, in addition to the ordinary executive clauses, contains an obligation by the granter to procure himself duly and lawfully served heir to his ancestor, and infeft and seised in due and competent form, and it likewise contains a procuratory for that purpose. In order to obtain a real right, the disponee will take infeftment on the disposition, or record it in the Register of Sasines, and then cause the granter's title to be made up by service and infeftment or registration, which will accresce to and validate his own right.

(v) By the doctrine of Accretion, "Whatever right befalleth to the author after his disposition or assignation accresceth to his successor, to whom he had before disponed, as if it had been in his person when he disponed, and as if it had been expressly disponed by him;" Stair, 3, 2, 1; Ersk. 2, 7, 3 and 4 Bankton, 3, 2, 16. In such a case as is put in the answer, it was quite admitted that the principle operated, but in regard to a different case Bell expressed a doubt; he said (Prin. § 882)—“If the granter of the precept have at the time no right to the subject, but acquire a right by subsequent title, it may be doubted whether accretion will take place;" but this view has been overruled; Swan, 22nd March, 1866, 4 M'P. 663, where it was held that in such circumstances accretion did take place. In Munro, 4th July, 1844, 6 D. 1249, which was a similar case, accretion was prevented by a mid-impediment. See question as to accretion, Gilmour, supra, note (x), p. 323.

(2.) Where the ancestor was not infeft the conveyance takes the form of a disposition and assignation, or assignation, and contains a procuratory for the service of the granter as heir in general; and a real right may be acquired by notarial instrument. But the service must be first expede, as it is essential that the decree be deduced in the notarial instrument.1

[Branch 2 of this Answer is altered from that in the last edition.]

VIII. DISPOSITION OF SUPERIORITY AND CONSOLIDATION.

727. In what respects is the superior restrained in regard to the disposal of the superiority?

(1.) The superior cannot, without the vassal's consent, dispose of the superiority to be held of himself so as to interject a midsuperior; because the vassal would be farther removed from the Crown, and would have one superior more to charge for an entry before he reached the Crown, on the failure of intermediate superiors. But such a conveyance is not a nullity, the objection being competent only to the vassal. Where the superior has succeeded by forfeiture to his vassal, and has thus become superior of the sub-vassal, he may revive the intermediate superiority unless he has given the sub-vassal an entry."(y)

(2.) The superior cannot, without the consent of the vassal, split the superiority into parts where there is one fee and one

1 Duff's Feud. Conv. 203; Menzies Lect. 629 (661).

2 Stair, 2, 4, 5; Ersk. 2, 5, 4; Bell's Prin. 857.

(y) This qualification is not quite in conformity with the doctrine of Stair and Erskine. Stair says "Superiors must receive and infeft their sub-vassals upon the refusal or incapacity of the vassal, and may at any time thereafter receive the immediate vassal or his successor or another if the immediate vassal's right be extinct or acquired by the superior." Erskine says "Such superior is entitled by the nature of the feudal contract to provide a new vassal for himself in the room of the forfeiting person," ""unless he has by some deed accepted the sub-vassal as his immediate vassal;" but for this effect probably a grant of the mid-superiority would be necessary; merely receiving him as vassal is not sufficient; Gordon, M. 10975; Argyll, M. 15013.

reddendo, so as to impose on the vassal a plurality of superiors; but the vesting of the superiority in two or more jointly, and pro indiviso, is not an infringement of this rule. Where separate subjects, held of the same superior, have been acquired by the same vassal, he is not entitled to demand that the several subjects shall be embraced in one charter, nor can he object to the superior selling the superiorities to different parties; and although the superior should have included the separate subjects in one charter, having distinct quæquidem and reddendo, it is still competent to sell the superiorities separately.1

728. Point out, and explain, the peculiar clauses of a dis

position of superiority.

(1.) In the dispositive clause the lands themselves are conveyed, the dominium directum being the radical right. But a conveyance of the superiority would be an effectual transmission."(*)

(2.) The obligation to infeft is usually a me only, as a holding de me would create an interjected superiority, to which, if permanent, the vassal is entitled to object. But an alternative holding has been recommended; because, although the vassal did object to the title, it would be as easy to get confirmation of a disposition a me vel de me, as of one a me only, while the disponee would, in the meantime, have all the advantages of an indefinite infeftment. [A clause of holding is not now necessary.]

3

(3.) The disposition contains an assignation, not to the rents, but to the feu-duties and casualties.

(4.) The clause of warrandice contains an exception of the feu and other rights and infeftments of property granted by the disponer and his predecessors.

729. When the superiority and property of an estate are vested separately in the same person, how may they

be consolidated?

1 Stair, 2, 4, 5; Bell's Prin. 859.

Gardner, 9th Feb. 1841, 3 D. 534.

3 Duff's Feud. Conv. 204.

(z) It was so held in Hamiltor, 23rd Feb. 1819, F.C. In Gardner, cited, opinions to the same effect were expressed, but the point was not there decided.

(1) Consolidation of the two fees can be directly accomplished only by the proprietor, as vassal, making resignation ad remanentiam of the dominium utile, in his own hands as superior.1 (2) But if there has been possession for forty years on the superiority title, which is a good title to the lands, the base infeftment will be worked off, and the two fees effectually consolidated by prescription, provided they stand destined to the same series of heirs.3(c)

1 Bald, 8th March, 1786, M. 15084; aff. 3rd April, 1787, M. 15089.

2 Middleton, M. 10944; Graham,(a) 6th Aug. 1840, H. of L., 1 Rob. App. 347.

3 Durham, M. 11220 ;(b) Wilson, 29th Nov. 1839, 2 D. 159, p. Lord Mackenzie. (c)

(a) In Court of Session, Bontine, 2nd March, 1837, 15 S. 711.

(6) Durham was a case, not of possession of property on superiority title, but of double titles, as to which see note (c), infra.

(c) The opinion of Lord Mackenzie here referred to states the view at that time generally entertained on the point; but since then a case has occurred in which, with his Lordship's sanction, a more extensive effect was given to prescriptive possession on the superiority title; Dalrymple, 10th March, 1841, 3 D. 837. Here a party who held the property of lands under one title, with a destination to heirs-male, acquired the superiority by a title with a destination to heirs-of-line. Both titles remained for some years personal; thereafter a feudal title was completed in the superiority, and the lands were possessed on it for more than forty years without any valid feudal title being made up in the property. Held that the possession on the superiority title extinguished the base title to the property; per Lord Cuninghame" It is a general rule of law that when a party holds a diversity of titles to the same lands, his possession ought to be ascribed to that title which it is most for his interest to hold by. But it was obviously the interest of the Earls of Stair to ascribe their possession of Cults to their title of superiority rather than to the conveyance of the dominium utile. The title of superiority was the more unlimited of the two rights, as Linn's conveyance of the superiority was to heirs whatsoever, while Lord Bargany's disposition of the property was limited to heirs-male. On this ground, it is thought that in general the heirs were entitled to have their possession ascribed to the more general right constituted by the conveyance of the superiority rather than to a right limited to heirs-male, which was the destination of the dominium utile." Per Lord Moncrieff-"It is true that the resignation was apparently on the procuratory in the title of the superiority, but I think the argument sound, that in the circumstances the investiture in the lands was sufficient to carry the plenum dominium, holding the dominium utile to have been sunk in or consolidated with the superiority by long possession on the title of Linn." "In holding, therefore, that the sixth and seventh Earls, by their possession on the investiture 1791, extinguished any possible right under