is necessary, (h) the holding implied being a me.1 [See section 25, Consolidation Act, 1868, and Schedules O and LL. See also as to holding now implied, Ans. 700. Confirmation is now unnecessary.] 777. How may the trustee complete a feudal title to lands, the bankrupt's title being an unrecorded conveyance, or if he possessed on apparency? [As the act and warrant of confirmation operates a transference to the trustee of all personal rights and unexecuted warrants, he may complete a feudal title in the same manner as if he held a statutory assignation in any of the methods mentioned in clause (4) of Answer 725. This answer is altered from that in the last edition.] 778. Where the title of the bankrupt's ancestor was an unrecorded conveyance, and the bankrupt himself has made up no title, May the trustee make up a feudal title on a conveyance from the bankrupt without validating the prior securities? Yes; care being taken to avoid making up a feudal title in the person of the bankrupt himself, by which alone the prior securities can be validated. But before the trustee's title can be completed, whether it be made up by infeftment on the precept in the ancestor's favour, or by notarial instrument, the bankrupt must first be served heir in general, as it is necessary that the service be deduced in the sasine or notarial instrument." [Service will now be unnecessary. See Conveyancing Act, 1874, § 9, and Mr. Mowbray's remark thereon, Analysis, p. 25.] 779. A trustee, without making up a feudal title, sold lands (h) This, under §§ 5 and 22 of the Titles Act, 1858, depended on whether or not the investiture contained a prohibition of subinfeudation or alternative holding. The 5th section of that Act is now explained by § 36 of the Titles Act of 1860, and the result is the same. may, without making up a feudal title in his person, and without concurrence of the bankrupt, grant conveyances of heritable estate belonging to the bankrupt, with such procuratories, precepts, or other warrants as the bankrupt might competently have granted; which conveyances are declared to be as effectual to the purchaser as if they had been granted by the bankrupt with concurrence of the trustee.'(n) It is consequently unnecessary for the trustee to make up a feudal title, unless there be a special object in doing so, as for the exclusion of preferable rights. 780. The estates of a person having been sequestrated after his death, and his heir having made up titles to the heritable estate; How may the trustee get the property transferred? The trustee may apply by petition to the Lord Ordinary on the Bills, praying that such estate shall be transferred to and vested in him; and the Lord Ordinary orders the petition to be served on the heir, and to be answered by him within fourteen days, an abbreviate of the petition and deliverance being recorded in the Register of Inhibitions, which has the effect of an inhibition. If, on the expiration of the induciæ, no cause is shown to the contrary, the estate is declared to be transferred to and vested in the trustee, as at the date of the sequestration; and the decree (o) is recorded within eight days in the Register of Adjudications.2 781. Where the holder of a bill payable by the bankrupt, with recourse on other parties, has received payment from the bankrupt, in ignorance of the sequestration, and given up the bill; Is he liable to repay to the trustee the amount received? The holder of the bill is not liable to make repetition; unless the trustee shall replace him in the situation in which he stood, or reimburse him for any loss or damage.3 1 19 & 20 Vict. c. 79, § 105. 2 Ibid. § 106. 3 Ibid. § 111. (n) Held that the provision in this respect in the former Act (2 & 3 Vict. c. 41) applied to the estates of the deceased as well as living bankrupts ; Melville, 1st June, 1842, 4 D. 1311. The same rule holds under the existing Act. (0) An abbreviate of the petition and deliverance. 782. May the trustee sell the heritable estate of the bankrupt by private bargain? He may do so with concurrence of a majority of the creditors in number and value, and of the heritable creditors, if any, and of the Accountant in Bankruptcy.1 783. Is it lawful for a creditor, or the trustee, or adjudger selling, to purchase the bankrupt's estate? When the estate is sold publicly, any creditor (p) may purchase; but the trustee, or commissioners, or adjudgers (r) selling, are not entitled to purchase." (2.) Adjudication in Implement. 784. Enumerate and explain the forms of preliminary procedure in use before the passing of the Lands Transference Act, in leading an adjudication against an unentered heir, in implement of his ancestor's obligation. (1.) Letters of general charge,-on which the heir was charged to enter himself as heir to his ancestor; the intention of the charge being to fix the representation of the heir, and consequently to subject him in liability to implement his ancestor's obligation. (2.) Action of constitution against the heir,-proceeding on his ancestor's obligation, and the general charge, and concluding that he should be ordained to make up titles to the lands, and convey them to the obligee. (3.) Letters of special charge,-where the ancestor was infeft, on which the heir was charged to enter heir in special to his ancestor, with certification that, upon his failure, the obligee should 1 19 & 20 Vict. c. 79, § 115. 2 Ibid. § 120. (p) Held, under 2 & 3 Vict. c. 41, § 99, which contained a similar provision, that heritable creditor concurring in sale may buy; Cruickshank, 15th Feb. 1849, 11 D. 614. (r) The words "or adjudger selling as aforesaid " in the clause referred to have no application to any part of the Act. They had reference to a clause giving adjudgers power to sell like creditors in bonds and dispositions in security, which was in the bill, but was dropped in the House of Lords. See Kinnear's Law of Bankruptcy, p. 141. have adjudication and other diligence against him, as charged to enter in special. The effect of the charge was to establish in the heir a fictitious title, equivalent to special service. A general special charge was used where the ancestor was not infeft. (4.) Action of Adjudication in implement,-founding upon the whole procedure, and concluding that the lands should be adjudged from the heir as charged to enter, and as representing his ancestor upon the passive titles, and that they should be ordained to belong to the pursuer in implement of the obligation.1 785. What was the change in the procedure where the heir appeared in the action of constitution, and renounced the succession? Instead of a personal decree against the heir in the action of constitution, decree cognitionis causa only was pronounced, which was the warrant for a summons of adjudication in implement contra hæreditatem jacentem, without an antecedent special charge. 786. Where adjudication in implement was to be led against an heir unentered, on his own obligation, What was the preliminary procedure? Where the heir himself was the granter of the obligation, there was no general charge, and no action of constitution, the procedure having commenced, if the ancestor was infeft, with a special charge; or, if his title was personal, with a general special charge, which was followed by the summons of adjudication in implement. 787. Enumerate the changes introduced by the Lands Transference Act, and the Titles to Land Act, in the procedure of leading adjudication in implement against an unentered heir. (1.) By the Lands Transference Act 2— 1. General, special, and general-special charges are abolished. 2. The citation upon, and execution of, a summons of constitution are declared equivalent to a general charge, with inducia expiring with the induciæ of the summons; and the execution of the summons is declared to infer the same certification. 3. The execution of the summons of adjudication is declared 1 Menzies Lect. 747 (789). 210 & 11 Vict. c. 48, § 16. equivalent to a special charge, or a general-special charge, as the case may require, the inducia expiring at the same time, (s) and the same certification being inferred. 4. It was provided that the action of constitution and adjudication might be combined, and the decrees of constitution and adjudication contained in one interlocutor.(t) But if the heir did not renounce, separate actions were necessary.'(u) (2) By the Titles to Land Act-1st, it was enacted that both actions of constitution and adjudication may be combined in one summons, whether the heir renounced the succession or not; 2nd, the heir's tempus deliberandi, formerly a year and day, was restricted to six months."(x) [These provisions were substantially re-enacted by the Consolidation Act, § 59 et seq.] 788. How does a party who has obtained a decree of adjudication in implement against the granter of the obliga tion, who was publicly infeft, complete a public title to the lands adjudged? (1) By charter of adjudication and infeftment or registration; or (2) by infeftment on or registration of decree (y) and confirmation. [Charters by progress are not now competent.] 789. Where the adjudication has been led against the unen tered heir of the granter of the obligation, How does the adjudger complete his title; the granter of the obligation having been publicly infeft? 1 Browns, 28th Jan. 1851, 13 D. 543. (s) With the inducia of the summons. 221 & 22 Vict. c. 76, § 27. (t) The combination of the constitution and adjudication was known and established in practice before the Act referred to was passed, but could proceed only contra hæreditatem jacentem. It was, therefore, adopted where it was expected that the heir should appear and renounce, failing which, the decree was limited to one of constitution, upon which the usual proceeding by special charge and adjudication followed. The judgment in Browns' case proceeded on the analogy of the former practice. (u) The Act here referred to applied only to lands not held burgage, but similar provisions in regard to lands held burgage are contained in the 10 & 11 Vict. c. 49, § 8. (x) This provision is now extended to lands held burgage; Titles to Land Act, 1860, § 16. (y) See qualification of this provision of 10 & 11 Vict. c. 48, § 19, in Ans. 789 (2). |