as the terce, &c. and with all deeds granted by the vassal to which the superior hath consented; but he is not bound to regard the voluntary grants made by the vassal without his consent, though these grants were effectual against the vassal himself, as long as the fee remained in him; because in casualties arising from the genuine nature of feus, the superior is understood, when he first made the grant, to have stipulated, that the right of fee should return to himself, in the event of their falling, as ample as he granted it. But liferent escheat, though it has been of long standing in Scotland, is only superinduced upon feus by our special customs; and indeed it seems extraneous and foreign to the true nature of feudal grants, as it is entirely founded on denunciation, which proceeds, not from any feudal delinquency against a superior, but from an offence against the sovereign. For this reason, no higher right accrues to him by that casualty, than was vested in the vassal himself at the time of its falling. And hence also the casualty is charged with all subaltern infeftments and leases granted by the vassal, on which possession hath followed before denunciation, though they had not been consented to by the superior himself; Stair, Jan. 19. 1672, Beaton, (DICT. p. 3664.); and with such leases granted even after denunciation as have been entered into without diminution of the rental; because the granting of leases is a necessary act of administration, profitable both to the superior and vassal, St. B. 2. T. 4. § 66.; and in general, with every burden that might have been charged at the time of the denunciation upon the vassal, in whose place the superior comes. 80. Gifts of escheat are null, if granted before denunciation, by 1567, C. 23. And indeed, in rights which depend on the death, delinquency, or act of another, no grant is effectual by the common rules of law, if made before the existence of the contingency which constitutes a present right in the granter; see Stair, Feb. 24. 1666, Sinclair, (DICT. p. 7972.). Hence a gift of escheat was adjudged null, because it did not mention any particular horning on which denunciation had proceeded; Durie, Nov. 20. 1628, Weston, (DICT. p. 5069.). A gift of escheat, whether single or liferent, may be also set aside on simulation, i. e. when it is upon false pretences, or misrepresentations, obtained by the donatary, for the behoof of the rebel himself, to cover his effects from the creditors, 1592, C. 147. But the act declaring this nullity, restricts it to the time of the rebel's continuing unrelaxed; so that, after relaxation, either himself, or any in trust for his use, may be constituted donatary. Yet as no right in the debtor ought to exclude his creditors, such right is ineffectual against the rebel's creditors, even against those who have used no diligence on their debts: It only secures the rebel from the claim competent to the crown against him ; and so is considered merely as an extinction of the forfeiture, in questions with the King or superior. TITLE V. Simulate gifts of escheat. To whom the mulation is competent. 81. Simulation may be objected against a gift, not only by a posterior donatary in competition with a prior, but by the rebel's credi- objection of sitors. Yet it is not competent to one whose only title is a voluntary right from the rebel posterior to the gift, to plead this nullity; because he had no interest at the date of the gift to object to it; Fount. Jan. 10. 1712, Whyte 76. The rebel's possession of the escheat goods, either by himself, wife, children, or near friends, founds a presumption by the aforesaid act 1592, that the gift is simulate. VOL. I. 4 R Fountainhall's report seems omitted in Mor. DICT.; but another by Forbes is there given, p. 37. BOOK II. Signatures. simulate. By the words near friends, may be understood, such near kinsmen of the rebel as are incapable of judging in his cause; for the similar term of conjunct persons in the act 1621, against the alienations of bankrupts, has been so explained, Forbes, Feb. 8. 1712, Lo. Elibank, (Dicт. p. 12569.). The donatary must be allowed a reasonable time after the gift, to turn the rebel out of possession; but how long, is an arbitrary question; see Stair, Dec. 4. 1669, Jaffray, (Dicт. p. 11598.). If the mere possession by a child of the rebel is sufficient to set aside the gift, one might think, that a gift taken directly in the child's own name, ought by stronger reason to presume simulation; but this presumption is elided, either if such child lived in a separate family from his father at the date of the gift, Stair, Dec. 4. 1669, Jaffray, (DICT. p. 11589.); or if it appear that the gift was not obtained for the father's behoof; Durie, March 20. 1623, Dalgarno, (Dicт. p. 11593.); or if the child was truly his father's creditor. Neither is simulation inferred, where the gift is taken directly to the wife or children of the rebel, from considerations of compassion, and expressly bears to be for their alimony and subsistence, Bankt. B. 3. T. 3. § 28. But in this last case, the gift will have as little effect against the rebel's creditors, as a gift to the rebel himself would have after relaxation. Another presumption of simulation is, that the gift was procured by the credit and interest of the rebel, and at his expence. This fact may be proved per membra curiæ, by the officers and clerks of exchequer, and by the keepers of the seals; Durie, Nov. 28. 1626, E. Kinghorn, (DICT. p. 5072.). But if the gift be taken in the name of a creditor, it is effectual, in so far as concerns the debt due to him, though the rebel's money or interest was used in procuring it; Durie, March 11. 1624, Douglas, (DICT. p. 3638.). And where such donatary has given back-bond to the exchequer in favour of the rebel's other creditors, the presumption, even from suffering the rebel to possess for four years after the gift, though it be a statutory one, is elidable by the donatary's oath, that the gift was taken for the payment of his own debt; Stair, Dec. 12. 1673, Dickson, (DICT. p. 11600.). 82. This title may be concluded with a short account of signatures, and of the different seals used in completing all royal grants, whether of gifts of casualty, or of offices, charters of lands, or other subjects flowing from the crown; all which proceed upon signatures that pass by the signet of the session. By signature, taken in a large sense, is understood a subscription or mark set to a writing; and in this acceptation it is frequently used, to denote those interlocutors of a Lord Ordinary, where, without dipping into the cause itself, something is ordered in point of form. But the word, in its most proper meaning, signifies a writing indorsed by a clerk or writer to the signet, and presented to the King, or the Barons of Exchequer as the King's commissioners, importing a grant of some subject, office or right, to him by whom, or in whose name, it is presented. Before the union of the two crowns in 1603, all signatures passed under the King's own hand; but when our Kings took up their residence in England, the Lords of Exchequer got powers from the crown to pass certain sorts of signatures in the King's absence, vid. supr. B. 1. T. 3. § 32.; B. 1. T. 3. § 32. ; which powers are now transferred to the new court of exchequer, which was established in Scotland after the union of the two kingdoms in 1707 77. And because our ancient 77 Vid. supr. B. 1. T. 3. § 18; and Dickson, 6th March 1815, Fac. Coll. cited in Not. 49 Ibid. ancient forms required the royal superscription to be prefixed to all signatures, a cachet or seal was made, having the King's name engraved on it, imitating the manner of his superscription, in pursuance of an act of privy council, April 4. 1603, with which all signatures were to be afterwards sealed that the Lords of Exchequer had been, or should be, authorised to pass * 83. Signatures, according to their different subjects, pass either by the great seal only, or by the privy seal only, or both by the great and privy seals, or both by the great and quarter seals; which however is not to be so understood, as if the same individual writing passed under different seals; but that after one part of the right has passed by one of the seals, another passes by another. Every signature must specially mention through what seal or seals it is to pass. If the signature is to convey the right of a land-estate, or other feudal subject, holden immediately of the crown, which requires a formal charter and seisin, the precept, of which it is the warrant, must pass by the privy seal, and the charter itself by the great seal. Hope in his Min. Pr. 86-89., has given us a most distinct account of the forms observed in passing a charter under the great seal; which forms continue to this day, with the two following variations; first, That whereas by the old practice, the privy seal was usually appended to the precept directed to the great seal before it was registered, it is now enacted, by 1672, C. 7., that all writings passing under the great and privy seals shall be registered in the registers of the great and privy seals respectively before the seal be appended to them. 2dly, That signatures and charters of the vassals of kirk-lands, where their valuation does not exceed L. 10 Scots, pass by the great seal per saltum, without passing any other seal, 1690, C. 32. All grants of prelacies and church-dignities, when the government of our church was Episcopal, passed by the great seal; and the commissions to the principal officers of the crown, as Justice-Clerk, King's Advocate, Solicitors, &c. do so at this day. Mackenzie affirms, $41. h. t., that commissions of Justiciary are by special statute ordained to pass by the quarter seal: He has probably had in his the act 1587, C. 82.; but that statute relates to the commissions of the justice-deputes, not of the justiciary-court as modelled by the act 1672; for the commissions of that court have always passed by the great seal. eye 84. If the signature be intended to confer the right of a moveable estate, or of any temporary casualty which requires no seisin, as nonentry, escheat, &c. it passes by the privy seal only; for the privy seal is proper to assignable rights; and whatever rights are transmissible by subjects by simple assignation, the sovereign transmits by his privy seal. Yet the right of moveables may be transmitted in the same signature which contains a grant of lands, and consequently passes by the great seal, if these moveables be specially expressed in the signature; because the great seal virtually comprehends under it the privy seal; Mack. Õbs. on act 1571, C. 36. p. 181. Grants of, or presentations to, inferior offices, whether ecclesiastical, as chaplainries, or civil, as commissary-clerkships, &c. pass also by the privy seal, without the necessity of being presented in exchequer 78. TITLE V. Such as pass by the great seal. Such as pass by the privy seal. 85. The quarter seal is kept by the director of the chancery. It Quarter seal. is, • But if the charter contains an original grant from the crown, it must still be superscribed by the King. 78 It was lately found not to be necessary that a presentation to a professorship should pass the privy seal; Lockhart Muirhead, 16th May 1809, Fac. Coil. BOOK II. Seals are to royal grants what subscription is to grants from subjects. is, in shape and impression, the fourth part of the great seal; and is, both in our old statutes, and in the signatures themselves, called the testimonial of the great seal, because anciently it was never appended but to that kind of rights to which the great seal had been first appended. Thus, in charters, and precepts of seisin proceeding upon them, the charter passes by the great seal; and the precept, which by our former custom was made out in a separate parchment, passed by the quarter seal; but by 1672, C. 7., the custom of writing precepts of seisin apart, and passing them under the quarter seal, is prohibited, and those precepts are ordained to be engrossed in the charters, which is declared to be as sufficient a ground for taking seisin, as if the precepts had passed under the quarter seal, supr. Tit. 3. § 33. Commissions of tutory, and of brieves issuing from the chancery, pass also by the quarter seal; and all gifts and letters of presentation to lands, proceeding upon bastardy, forfeiture, or ultimus hæres, where the lands are holden of a subject: But where they are holden of the crown, such grants must, agreeably to the former rule, pass by the great seal. 86. By art. 24. of the treaty of Union, all public acts, instruments, and treaties, are to be from thenceforth sealed with the great seal of the united kingdom of Great Britain; and by the same article a new seal was appointed to be made for Scotland, to be used in all matters of private right, offices, and grants, which formerly passed by the great seal of Scotland. The privy seal and quarter seal continue on the same footing as before the Union. Seals are necessary for giving authority to, or authenticating, the grants which pass under them; and so are to royal grants what subscription is to grants by subject-superiors. The passing of grants by the seals is also of use in giving to the King's officers a reasonable time to inquire whether the right applied for ought to be granted; for if it should appear that it is solicited subreptione vel obreptione, by concealing the truth, or affirming a falsehood, the Barons may stop it, even after passing the signature, at any time before it has gone through all the forms. Dominium utile, Comprehends, 1mo, All lands expressed in the charter. TIT. VI. Of the Right which the Vassal acquires by getting the Feu. AFTER what FTER explaining what is contained under the dominium directum, or right of superiority, which the superior reserves to himself in the feudal grant, the dominium utile, or right of property, which is thereby conferred on the vassal, offers itself naturally to our consideration. The vassal acquires the property, first, of all the baronies, tenantries, fields, and other lands whatsoever, which are either expressed in the charter, or which the law construes to be carried by it, though not specially mentioned; and, 2dly, of whatever is accounted part or pertinent of land, whether above the surface, as houses, trees, &c. or under it, as minerals, coal, limestone, &c. a cœlo usque ad centrum 79. 2. As to the first, differences can seldom arise concerning the extent of the lands conveyed in a bounding charter, which points out the 79 Even a general reservation by the superior of "the haill mines and minerals of "whatever nature and quality," has been found not to comprehend a quarry of stone, though "of a rare species, peculiarly fitted for architectural purposes;" Menzies, 10th June 1818, Fac. Coll. the limits of the grant by march-stones, the course of a river, or other obvious and indubitable boundaries. Though it cannot be proved at what time march-stones were fixed, their having been reputed the boundary will support the right of the vassal who grounds a claim upon them, if he has not lost it by prescription. Where a charter, without referring to any boundary, describes the lands or baronies by special names or designations, it can only be known by the common opinion of the country, what lands fall under the designations expressed in the charter, and by what limits those lands are circumscribed. Controversies of this kind are determined upon an action of molestation, to be explained, B. 4. Tit. 1. § 48. 3. Sometimes separate farms or tenantries, though they had not been formerly reputed to belong to, or, as it is commonly expressed, to be pertinent of the lands specially mentioned in the charter, are carried by it, if they have been possessed by the grantee as pertinent past memory of man, Stair, Nov. 17. 1671, Young, (DICT. p. 9636.); for by the grantee's immemorial possession, such tenements are considered to have belonged originally to the lands expressed in the grant. In this matter, the following rules are observed by our practice: First, In a bounding charter, no possession can establish to the vassal a right of lands without the bounds specified in his charter; for he is circumscribed by the tenor of his own grant, which excludes whatever is not within these bounds from being pertinent of the lands disponed, said Nov. 17. 1671. But nothing hinders a landholder who has not himself a bounding charter, from acquiring, by prescription, lands which lie within the boundaries of another proprietor, as part and pertinent of his own lands; for he cannot be limited by the bounding charter of another. 2dly, Where a tenement of land is possessed by one barely as pertinent, and by another in virtue of an express right, he who possesses under the express right is in dubio to be preferred to the other. 3dly, Where neither party is expressly infeft, but both possess the same subject as pertinent, the mutual promiscuous possession of both resolves into a commonty of that subject. But questions of this nature depend much on the different kinds of the possession had by the two competitors; for if one has had the exclusive possession of pasturing cattle on the ground, and has also been in use to cast feal and divot, and perhaps to turn up part of the field with a plough, while the possession of the other was confined to the casting of feal and divot only, he who hath exercised all the different acts of property the subject is capable of, is accounted the proprietor; and the other, whose possession was more limited, is entitled merely to a servitude upon the property. 4thly, The possession of a tenement not contiguous to the lands specially conveyed, seldom carries right to the subject as pertinent; and though it may, in some singular cases, for which see Craig, Lib. 2. Dieg. 3. § 24., this at least is certain, that another who is infeft in lands lying contiguous to the subject in dispute, will be preferred upon a more slender proof of possession *. 4. As to the second point, it is universally admitted, that every thing which, from its close coherence or connection with land, is considered in law as part or pertinent of it, goes to the vassal as an accessory of the subject contained in the feudal grant. Most of these are, however, anxiously enumerated in the Tenendas of every charter; and it may not be amiss to explain, shortly, such of them as require illustration. Cum domibus, ædificiis: Under these words are included, not only dwelling houses, stables, barns, and other out-houses, VOL. I. 4 s * See Balf. p. 175. See Dicт. voce PART AND PERTINENT. TITLE VI. or such as have been possessed immemorially as pertinent of the lands. 2do, Every thing connected with the land is part or pertinent. |