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Ker of Moriston v the Creditors of Scot of Vogrie. [1702] Mor 14310 (20 January 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Mor3314310-002.html Cite as:
[1702] Mor 14310
Symbols and Formalities of Infeftment of Annual Rent.
Ker of Moriston v. the Creditors of Scot of Vogrie
Date: 20 January 1702 Case No. No. 2.
A sasine reduced, being upon an heritable bond, and not bearing delivery of a penny money.
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In a competition betwixt Ker of Moriston, and the Creditors of Scot of Vogrie, the Lady Vogrie producing a sasine upon the estate of Eccles, and craving preference thereon to Moriston, it was objected, the sasine was null, because, being an infeftment of annual-rent, it wanted the delivery of the ordinary symbol, viz. a penny of money. Answered, It bore tradition of earth and stone on the ground of the lands, conform to the precept of sasine in all points; which relative words must take in traditionem denarii, that being expressly mentioned in the precept: and that the Lords have sustained sasines wanting these or the like words, 23d March, 1631, Somervel of Drum, Sect. 3. h. t. and 15th March, 1631, Smeton, Sect. 3. h. t. where the sasine of a mill was sustained though wanting the symbol of a clap and happer, because it bore these general words, cum omni juris solemnitate; and the reference here to the precept is equivalent. Replied, Law and custom has determined the proper symbol for every right, and without the observation thereof, has annulled the deed; and the cases cited do not meet: for there the mentioning the legal solemnities to have been used, can admit no other construction but that omnia erant debite et solemniter acta; whereas here the relation made to the precept of sasine, refers to the manner of holding, and clauses of reversion, and not to the symbol of a penny. The Lords, by a plurality of seven against six, reduced the sasine on this defect, and found it null; for they thought, since an annual-rent has a special characteristic, and distinguishing symbol from right of property, it ought to be observed.
Fol. Dic. v. 2. p. 362. Fountainhall, v. 2. p. 139.
