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1165. Where the right of reversion in the back-bond is burdened with a specified sum only, and where the creditor has made further advances; Can the debtor demand a reconveyance on payment of the sum specified, the bond not being recorded?

No; until registration or judicial production of the bond the security covers all debts owing to the disponee, at whatever time contracted.1

1166. How does the heir of the debtor make up his title? By general service.2

1167. What is the proper method of extinguishing a security constituted by absolute disposition and back-bond? The security may be extinguished by renunciation where the back-bond has been recorded in the Register of Sasines. But whether it is recorded or not, Professor Menzies says, "the right

is most conveniently and satisfactorily extinguished by resignation ad remanentiam."

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1168. What is a contract of ground-annual?

A contract of ground-annual, which is employed where subinfeudation is legally impossible, or conventionally prohibited, is a bilateral deed of conveyance granted in consideration of a fixed yearly return, for which the disponee grants his personal obligation (y) to the disponer, and which is likewise made a real burden

1 Maitland, 23rd Nov. 1827, 6 S. 109; Russell, 18th June, 1829, 7 S. 767; aff. 4th April, 1831, 5 W. S. 256; Duff's Feud. Conv. 295.

29.

2 Ersk. 3, 8, 77; Ersk. Prin. 3, 8,

3 Menzies Lect. 812 (861).

(y) It was held in several cases in the Court of Session that the burden of a ground-annual followed the subjects and was enforceable against the proprietor for the time being, but did not continue to affect personally the original disponee or his heirs after they had been divested; Peddie, 27th Feb. 1846, 8 D. 560; Small, 3rd Feb. 1849, 11 D. 495; Gardyne, supra, note (x), p. 545; but the House of Lords reversed the judgments in the last two cases (Millar, 17th March; Royal Bank, 13th May, 1853, 15 D. 38 and 45), and found that the personal obligation subsists against the party who undertook it and his heirs, though divested of the lands, and that subsequent disponees did not incur any personal liability, and that as regards them, the ground-annual could be recovered only from the lands. Peddie, supra, was noticed as wrong decided.

In these cases,

on the lands. The deed resembles a feu-contract, and contains similar provisions and stipulations, but it does not create a new fee, the yearly return being merely a burden on the disponee's infeftment, and depending, for its efficacy, upon publication in the registers. [Reference is made to the modern form of contract of ground-annual, Jur. Styles, i. 134. Ground-annuals may be transmitted under the ordinary heritable security styles, but it will be kept in view that they remain heritable as to succession, Consolidation Act, § 117; Conveyancing Act, § 30.]

[1169. What is poinding of the ground?

Poinding of the ground is a real diligence by which a creditor holding a real right attaches the debtor's moveables so long as they remain on the ground, not completely transferred, also the tenants' moveables on the ground, but only to the extent of the rents due by them or current at the time. "It is a combination of a real petitory action and a real diligence." Lord Deas in Royal Bank, 4 R. 985. See as to the effect of serving the summons of poinding the ground, Lyons, 8 R. 24.]

XIV. LEASE.

1170. What is a lease?

A lease is a contract by which the use of land or other heritable estate is granted to the lessee or tenant for a fixed yearly rent, or duty to be paid or performed by him to the lessor or landlord, either in money, the fruits and produce of the ground, or services.

1171. By what statutes were leases rendered effectual against

singular successors ?

The Court of Session applied the same rule to the personal obligation for the feu-duty in feu-contracts; King's College of Aberdeen; Brown's Trs., 11th March, 1852, 14 D. 675; but here also the House of Lords reversed, 11th August, 1854, 17 D. 30. There is a difference, however, in the other respect in regard to feu-duties-viz., that the vassal for the time is personally liable for them, there being privity of estate between the superior and him; Millar, in H. of L. ut supra. In one case, where trustees were ordained to enter in subjects, the annual value of which was less than the feu-duty, it was held that they were "not bound so to enter as vassals, or accept a charter from the pursuers, as to undertake or subject themselves to any personal liability ultra valorem of the trust-estate;" Leith Dock Commissioners, 8th June, 1860, 22 D. 1072.

(1.) By the Act 1449, c. 18, it is ordained, "for the saftie and favour of the puir people that labouris the ground, that they and al utheris that hes taken or sal take landes in time to come fra Lordes, and hes termes and zeires thereof, that suppose the Lordes sell or analy that land or landes, the takers sall remaine with their tackes unto the ischew of their termes quhais handes that ever thay landes cum to, for siclike maill as they tooke them for." Under this statute, possession was indispensable.

(2.) By the Registration of Leases Act, 1857, it was enacted, that certain descriptions of probative leases for a period of thirtyone years or upwards (See Ans. 1173), registered in the Register of Sasines, should, by virtue of such registration, (a) be effectual against any singular successor, whose infeftment is posterior in date to the date of the registration,' in the same manner as if the grantee had entered into actual possession of the subjects leased at the date of registration."(b)

1172. What are the requisites of an unregistered lease in order to be effectual against singular successors?

(1) The lease must distinctly specify the subject let; (2) it must contain a specific rent; (3) it must contain a definite ish ; and (4) it must be followed by possession.

1173. What are the requisites of a lease which may be registered under the Registration of Leases Act?

(1) The lease must be probative. (2) It must contain a specific rent. (3) The endurance must be for thirty-one years or upwards, or the lease must contain an obligation to renew from time to time so as to endure for a period of thirty-one years or upwards.* (4) The lease must specify the subject. (5) In leases executed after the date of the Act, if not granted in terms of an

1 20 & 21 Vict. c. 26, § 2.

2 Ibid. § 16.

(a)

3 Ibid. § 1.

4 Ibid. § 17.

"If valid and binding, as in a question with the granters thereof." (b) The recording is to be "at or subsequent to the date of entry," and is not necessary "except for the purposes of this Act;" and "all such leases which would under the existing law, prior to the passing of this Act, have been valid and effectual against any such singular successor as aforesaid, shall, though not recorded, be valid and effectual against" him as well as against the granter; 20 & 21 Vict. c. 26, § 2.

obligation to renew contained in a lease dated before the Act,(c) the extent of the subjects (unless these consist of mines, minerals, or burgage subjects) (c) must not exceed fifty acres; but no leases executed before the date of the Act are excluded from registration in respect of the extent of the subjects let. (6) In leases of subjects not burgage, executed after the Act, if not a renewed lease as above mentioned, the name of the lands of which the subjects let consist or form a part must be mentioned. (7) In leases executed after the Act, if not a renewal as above mentioned, the extent of the subjects let must be mentioned, excepting in leases of burgage subjects, and of mines and minerals.'

1174. May leases of ordinary duration be granted by a liferenter, or a tutor, or a minor with consent of his curators?

(1) A lease granted by a liferenter is limited to the duration of the liferent; (d) (2) a lease by a tutor expires with his office,3 (e) (3) a lease by a minor, with consent of his curators, subsists till its natural expiry.*

(For effect of verbal leases, see Ans. 170).(ƒ)

1 20 & 21 Vict. c. 26, § 18.

2 Bell's Prin. 1183.

3 See Ans. 82.

4 Ibid.

(c) This seems to be a mistake; no lease whatever executed after the passing of the Act (except of mines and minerals) falls within its operation if the extent of land exceeds fifty acres. See Act, § 18.

(d) Unless greater powers are conferred by the liferent right.

(e) This is the rule under the ordinary powers of administration, but, on cause shown, the Court will authorise tutors to grant leases to extend beyond their period of office. Thus, tutors-nominate have been authorised to grant leases of farms for nineteen years, Halkett, 24th Nov. 1847, 10 D. 146; of farms for nineteen years, minerals for thirty-one years, and waterfalls for twenty-one years, Speirs' Tutors, 11th July, 1848, 10 D. 1474; of farms for nineteen years, Morrison, 19th July, 1861, 23 D. 1313. Tutors-at-law have been authorised to grant leases for twenty-one years, Brown, 11th Dec. 1846, 9 D. 250; for fifteen years, Kincaid, 5th July, 1856, 18 D. 1208. In this case it was held that The Pupil's Protection Act, 12 & 13 Vict. c. 51, § 28, gives the Court authority to grant such powers to tutors-at-law. See also Fraser, 9th June, 1857, 19 D. 801.

(ƒ) In a removing, the defender, who had previously been in possession on a nineteen years' lease, which had expired some years before, pleaded a verbal agreement for a new lease for nineteen years. Held that a letter written by

1175. Is a lease of game, or of salmon-fishings, followed by possession, effectual against singular successors? State

the reason.

(1) A lease of game is not effectual against singular successors; because such a lease is rather a delegation of a personal privilege than a tack protected by the Act 1449. (g) (2) A lease of salmon-fishing is effectual; because such fishings are inter regalia, and may exist as a separate real estate.1

1176. The landlord during the currency of a lease granted to the tenant a new lease for forty years from the term of expiry of the former, and the tenant immediately recorded the new lease in the Register of Sasines; Was the new lease effectual against a singular successor who acquired the estate before the expiration of the old lease?

No; because the tenant had not attained possession under the new lease; and the registration of it does not make it effectual against singular successors before the date of entry therein stipu lated. But the new lease will be binding if it is to begin from its date."

1177. What is the effect of a lease where the granter is uninfeft, or where he is an apparent heir?

(1) Where the granter is not infeft, the lease, though valid in

1 Pollock, 5th June, 1828, 6 S. 913.(g)

* Douglas, M. 15219; Scot, M. 15220; Johnston, 3rd July, 1760, 5 B. S. 877.(h)

320 & 21 Vict. c. 26, § 2.

4 Neilson, M. 15231; E. of Cassilis, 3 B. S. 600.

the husband of the proprietrix (who had committed to him the management, with power to let and renew leases) to the surveyor of taxes, in answer to an inquiry to enable him to complete the valuation roll, was equivalent to the writ of the proprietrix, and competent and sufficient evidence to prove the agreement, and that, as it had been followed by possession and rei interventus, she could not remove the tenant, but that all questions as to the terms and conditions of any formal lease to be entered into should be reserved; Emslie, 2nd June, 1865, 3 M'P. 854.

(g) The same decision given by the Lord Ordinary, Birkbeck, 22nd Dec. 1865, 4 M'P. 272. The question was here raised, but not decided, whether a lease of a deer forest falls under the same rule.

(h) See also Birkbeck, supra, note (g), and Redhead, 10th Feb. 1792, H. of L., 5th Feb. 1794, 3 Pat. App. 309.

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