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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Margaret Shanks v The Kirk-Session of Ceres and Others. [1797] Mor 4295 (27 January 1797)
URL: http://www.bailii.org/scot/cases/ScotCS/1797/Mor1004295-074.html
Cite as: [1797] Mor 4295

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[1797] Mor 4295      

Subject_1 FIAR.
Subject_2 DIVISION III.

Whether a fee can be in pendente.

Margaret Shanks
v.
The Kirk-Session of Ceres and Others

Date: 27 January 1797
Case No. No 74.

The fee of a subject being vested in one person by the dispositive clause of a charter, and in another by the precept and instrument of sasine, the former was founds to be fiar.


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John Howie, mason in Ceres, purchased a few acres of land from Sir Thomas Bruce Hope. In the dispositive clause of the charter obtained by Howie, the lands were conveyed to him and his wife in conjunct-fee and liferent, and their son Thomas in fee; whom failing, to the heirs and assignees of John Howie. But, in the precept of sasine, warrant was given for infefting John and his wife simply in liferent, and their son Thomas in fee.

The instrument of sasine was in terms of the precept.

John Howie was heir to his father in certain houses and yards, which likewise held of Sir Thomas Hope, as to which the charter of the lands contained a precept of clare constat in his favour, and, subjoined to the instrument of sasine as to the lands, there was a declaration by the notary, but not signed by John Howie, that the latter had, propriis manibus, given infeftment of the houses and yards to his wife in liferent, and his son Thomas in fee.

Thomas Howie died before his father, who disponed the subjects to himself and his wife in liferent, and his other two sons equally in fee.

One of the sons, after John Howie's death, sold his half to the kirk-session of Ceres; against whom, and the proprietors of the other half, Margaret Shanks, widow of Thomas Howie, brought an action in order to have her right to a terce out of the subjects declared; and the question came to be, Whether Thomas Howie was fiar of the subjects during his father's lifetime?

As to the lands purchased from Sir Thomas Bruce Hope, the defenders

Pleaded, By the dispositive clause of the charter, the fee was clearly vested in the father, and the name of the son introduced merely to save expense in making up titles in case he should survive him, Stair, p. 286.; Diet, voce Fiar; Bankton, v. 1. p. 576.; Erskine, p. 561. Nor is there any reason to presume, that the precept of sasine, the object of which is solely to carry the dispositive clause into effect, was meant to alter the nature of the right, and therefore the discrepancy between them must have arisen from an oversight of the writer: Indeed, as the dispositive clause is the principal, and the other the accessary, wherever they disagree the right must be regulated by the former. Originally, when the superior gave a verbal mandate to his bailie to grant infeftment to his vassal, the terms of the infeftment could not have varied the right conveyed by the charter. The same must have held when afterwards the precept came to be in writing, but on a paper apart; nor can it make any difference, that the precept is now engrossed in the body of the charter.

Answered, When a father conveys a subject to himself in liferent, and his son nominatim in fee, the fee is vested in the latter, and it depends merely on the intention of parties, whether the expression ‘conjunct-fee and liferent,’ gives the father a fee or a liferent. His intention to confine himself to the latter, is here established by the terms of the precept and instrument of sasine, and by his afterwards disponing the same subjects to his younger sons, reserving his own and his wife's liferent.

Besides, wherever there is a discrepancy between the dispositive clause and the precept of sasine, the latter must prevail; for, in consequence of the various statutes directing the publication and registration of sasines, (1503, c. 89.; 1540, c. 79.; 1555, c. 46.; 1587, c. 64.) which must be in terms of the precept on which they proceed, the precept has become the most material clause in the charter. The pursuer, therefore, became entitled to her terce on the faith of the records.

As to the houses and yards, the defenders

Pleaded, The infeftment said to have been given propriis manibus of John Howie is null, because it was not subscribed by him.

Answered, It is no objection to the instrument of sasine, that it is not signed by John Howie, as the circumstances of the case afford evidence that it was agreeable to his intention; Stair, b. 2. tit. 3. § 19.; Stair, 11th February 1669, Buchan against Taits, voce Proof; 23d January 1618, Murray against Shaw (Hope) Ibidem; Stair, 29th June 1665, Norvel against Hunter, Ibidem.

The Lord Ordinary found the fee of the subject, in the charter granted by Sir Thomas Bruce Hope, was in Thomas Howie the son, and that therefore the pursuer was entitled to her terce.

Upon advising a reclaiming petition, with answers, it was

Observed on the Bench, The dispositive clause of the charter clearly conveys the fee of the acres to the father, and the effect of any discrepancy in the precept would be, not to vest the fee in the son, but to make the father's right still personal.

As there was no previous disposition of the houses and yards by John Howie to his son, the instrument of sasine propriis manibus is null, for want of the father's subscription.

The Lords almost unanimously ‘Altered the interlocutor reclaimed against, and assoilzied the defenders.’

Lord Ordinary, Dreghorn. Act. D. Cathcart. Alt. Neil Ferguson. Clerk, Pringle. Fac. Col. No 13. p. 27.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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