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CHAPTER II.

OF THE FREEHOLDER'S QUALIFICATION IN RESPECT OF

ESTATE.

By the act 1681 it is declared, that none shall have vote in the election of commissioners for shires but those who at 'that time shall be publicly infeft in property or superiority,

and in possession of a forty shilling land of old extent, ' holden of the king or prince, distinct from the feu-duties in 'feu lands; or, where the said old extent appears not, shall 'be infeft in lands lyable in publick burden for his Majesty's 'supplies, for four hundred pounds of valued rent, whether 'kirk lands, now holden off the king, or other lands holding 'feu, waird or blench, off his Majesty, as King or Prince of

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Scotland. This clause, as well as some of the subsequent: provisions of the act, suggest the different matters to be treated of in considering the feudal qualification of the freeholder, and these shall form the subjects of the following sections.

SECTION 1.

Of the Holding of the Freeholder's Estate, and the Constitution of Qualifications.

ACCORDING to the genius of the feudal system, land is the subject of the double right of superior and vassal. By the theory of that system, the king was originally the feudal proprietor of all the lands in his dominions, and conveyed portions of them to different individuals, to be held under him, on the condition of military service. In process of time, these crown vassals came to have the right of conveying their

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estates to others, to be held under themselves, on various conditions; and thus to have the double character of superior, in relation to those holding under them, and of vassal, in relation to their sovereign. By this system, however, the superior under the crown is by no means divested of the lands, and, even at the present day, continues to retain, in the eye of the law, a right of a very high description in them. He enjoys what is termed the dominium directum, which is a right of proprietorship, limited only by the dominium utile, which is vested in the vassal. According to strict feudal notions indeed, the dominium directum or superiority is the more important estate of the two; the vassal's right being more properly that of a mere usufructuary, making an annual prestation to his superior, for the liberty of enjoying his land.

In the feudal series, therefore, land is a subject affording an estate of its own proper nature to each individual, from the superior under the crown, to him who actually enjoys the fruits of the ground; and each of those individuals requires a feudal title to the subject perfected by sasine.

It is upon these principles that the nature of the right which is requisite to constitute a freehold qualification is founded. The statute 1681 requires that the lands which shall afford the privilege of voting, shall be holden of the king or prince, in property or superiority. The estate in the crown vassal may either be an absolute right of property, unlimited by any subvassal, or it may be that kind of estate in the land, which is the dominium directum only, and which is limited by the property of the subvassal. Both these

kinds of right in the crown vassal are, in the eye of law, real estates, and are held of the crown. In both the estate is feudally vested in the superior. In the case where he is not possessed of the dominium utile or property, there is a vassal who holds that right under him, and who is equally with himself feudally vested with the estate.

This latter circumstance, that there shall be a vassal, is

is a

essential, whenever a freehold qualification is rested on a right of superiority alone. It in truth becomes the test that there proper feudal estate in the superior held of the crown. For, if he does not possess the property himself, and if no vassal holds it under him, then it is plain, that any right which is supposed to be in him, must either be a mere nonentity, or an anomalous excrescence on the proper feudal series. Any claimant, therefore, on a right of superiority, must be able to shew, on the one hand, that he holds the lands immediately of the crown; and, on the other, that a vassal has a proper feudal title to the property under him as supe

rior.

Hence arises the well established rule, that a person who has the full and undivided right of superiority and property in lands, cannot create a freehold in another by any conveyance to him, under reservation of the property1. There is here no feudal separation of the superiority and property. There is no creation of a subright; and the whole proceeding is anomalous and unavailing.

When such a proprietor wishes to constitute a valid freehold in the person of another, and to retain the property for himself, some mode must be adopted which shall create a valid feudal subright. This may be accomplished either by means of a third person, or without such aid.

In the former case, the crown vassal conveys to a trustee the lands to be held base under himself. The property and superiority are thus feudally separated, and a subright created. The crown vassal then conveys to the person who is to have the freehold, the lands, excepting from the warrandice the feu-right already constituted, and granting procuratory of resignation. The trustee then reconveys the property to the truster. The disponee of the superiority, when infeft on a crown charter, obtained in virtue of the procuratory, is feu

1 Elliot v. Shaw and Oliver, 1759, Wight, p. 252; Baron Norton v. Anderson, 6th July 1813, Fac. Col. See this case mentioned, p. 53.

dally vested in a proper freehold qualification; or, after having granted the feu-right, the granter may resign into the hands of the crown, and obtain a new charter, the precept of which may be assigned, in the disposition, to the intended freeholder who completes his title by infeftment.

Where a proprietor wishes to create more than one qualification, retaining the property, it is advisable that, in constituting the subright, the lands and feu-duties should be so divided, that it may be ascertained what portion is payable to each superior. This may be accomplished either by separate conveyances of the several parcels of lands to the trustee, or if one conveyance is used, by regularly dividing the lands into those parcels, and determining the feu-duties payable for each parcel 1.

It is a fixed principle in the feudal law, that one who is not infeft in lands, but has merely a personal right to them, cannot effectually grant warrant for infefting his disponee. He may, indeed, convey his personal right, and assign the unexecuted precept of sasine, which will substitute the disponee in his right, and enable the latter to obtain infeftment; but he cannot grant a warrant, flowing from himself, for completing the investiture by sasine. Another doctrine, however, is recognised, which, in general, obviates the inconvenience attending the former. When the author of a disponee acquires a right appertaining to that which he has conveyed, it is held to be immediately transferred to the disponee, or, in law phrase, to accresce to the previous right. If, therefore, in the case under consideration, the author, after granting precept of sasine, and after his disponee is infeft, takes sasine himself, that infeftment accresces to the disponee's right, and validates the precept and investiture following on it.

From these principles it follows, that where an uninfeft proprietor, in constituting a feu-right, has granted warrant for sasine, and where any thing has occurred to prevent the 1 See Wight, p. 252, note; and Bell, p. 74.

accretion of the author's infeftment, the feu-right becomes incapable of being perfected by sasine; and all attempts to convey the superiority to any other become unavailing, because there will be no vassal in the lands, contrary to the fundamental rule which has been already explained. If an uninfeft proprietor dispones to be held base, and grants pre cept of sasine, and the disponee is infeft; and if the author then conveys the dominium directum to a third person, who is infeft on the assigned crown precept, he can no longer take sasine himself, because he has denuded of his whole right; and the infeftment of the disponee of the superiority cannot accresce to the disponee of the property, first, because that infeftment is not in the person of the author of the latter, and, secondly, because it is only in the superiority; whereas it is essential that the author should have been infeft in the property also, to enable him to grant warrant for sasine in the property 1.

Where the interest in land is divided between a liferenter and a fiar, and attempts are made to constitute freeholds, questions of difficulty may arise.

In a case which occurred a few years ago, certain trustees, who had got a disposition to the superiority of some lands, expede a crown charter of that superiority, but took no infeftment upon it. They then disponed the liferent of the superiority to another person, with power to enter vassals, and receive resignations ad remanentiam, and assigned to him the precept in the charter on which he took infeftment. The dominium utile or property was then resigned ad remanentiam, into the hands of the liferenter and fiars of the superiority; and the liferenter, with the consent of the fiars, granted a new feu-right to another. It was held, that the resignation was effectual, although the fiars were not infeft; that the new subright, constituted by the liferenter, was not valid for a period longer than his life; and that, consequently, a claim

1 Baron Norton v. Anderson, 6th July 1813; Fac.

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