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LORIMER 1. Lorimer, 10 Ves. 367, n. . . . . . . . 274, n.
216 NORRISH 1. Marshall, 5 Madd. 475 . .
36 O'NEILL 1. Lucas, 2 Keen, 313 . . . . . . . . . 72 PERCHARD v. Heywood, 8 T. R. 468 . . Popham v. Brooke, 5 Russ. 8; 6 L. J. Ch. 184 . . . . . . 60 Potts 1. Leighton, 1ő Ves. 273. . . . . . . . . 24 Putnam 1. Bates, 3 Russ. 188 . . . . . . . . . 57 RANN 1. Hughes, 7 T. R. 350, n.; 4 Br. P. C. 27 . . . . . 262 R. v. Collett, 2 B. & C. 324; 3 Dowl. & Ry. 592; 2 L. J. K. B. 44 148 ---- v. Hodges, Moo. & Mal. 341. . . . . . . . . 252 – 1. London Gas Light & Coke Co., 8 B. & C. 54; 2 Man. & Ry. 12 ; 6 L. J. M. C. 113 . . . . . . . . . . .
100 Rider v. Kidder, 10 Ves. 360 . . . . . . . . . 269 Roach 2. Wadham, 6 East, 289 . . . . . . . . . 134 SAUNDERSON v. Griffiths, 5 B. & C. 909; 8 Dowl. & Ry. 643 ; 4 L. J. K. B.
318 . . . . . . . . . Smith v. Hodson, 4 T. R. 211; 2 Sm. L. C. (10th ed.) 143 . . 93 Stanton v. Hatfield, 1 Keen, 358 .
. . . . . . . 70
. . . . . . . . . 187
. . WILKINSON v. Coverdale, 1 Esp. 75. ..
The Revised Reports.
IN THE HOUSE OF LORDS.
1830. Februry. July 13.
L.C. ( 104 )
APPEAL FROM THE COURT OF SESSION.
(2 Dow & Clark, 104—120.)
Held by the House of Lords, affirming a judgment of the Court of Session, that this was a public holding, and inyalid for want of confirmation; and that the agent having chosen to depart from the usual practice of introducing the double manner of holding, and having neglected to procure confirmation, was bound to make good the loss. Secus, if it had been a mistake in a nice and difficult point of law. LOWAND, a banker in Glasgow, being willing to advance 1,0001. in i to Mr. Campbell, of Lochend, on heritable security, and not ring that Mr. Campbell should know that the money came from ., employed Stevenson, a writer in Glasgow, to offer the loan to
C. in the name of a Mr. Wardrob, a partner of Rowand. Mr. iccepted it, and Rowand employed Stevenson to prepare the Irity. The *security was prepared and executed in December, 7, and handed over to Mr. Rowand, who thereupon advanced money to Mr. C. There was some dispute afterwards whether as handed over to Rowand by Stevenson as a complete and R. – Vol. LIII.
STEVENSON valid security over the lands. It appeared that Stevenson had sai Rowand.
to Rowand at the time, that something remained to be done; but turned out that this referred merely to an assignation of the securit to be made by Wardrob to Rowand, which was accordingly made.
In August, 1820, Sir Colin Campbell, and a Captain Patrie Campbell, lent Mr. C. 5,2501. on security of the same lands Lochend. Afterwards Mr. C. became embarrassed ; the value land was depressed ; and it was found that the price that could I got for the estate of Lochend would not nearly pay the mone secured on it; and the result was, that a sequestration was applie for and awarded.
Sir C. and Captain Campbell then looked narrowly into the pri securities, and discovered, that in the heritable bond in favour Wardrob this was the only manner of holding introduced ; vix Mr. C. was taken bound" to infeft and seise the said Hen Wardrob” and his foresaids, in the “lands and others aboy disponed, to be holden from me of and under my immediate lawf superiors thereof, in the same manner as I hold the same myself, &c There was no charter of confirmation. The precept of saisine whit followed made no mention of any particular manner of holding, b simply granted warrant to infeft Wardrob, his heirs and assignes in the lands mentioned in the previous part of the deed.
The state of the law, and the practice on the subject, was thi
described in the case for the respondent Rowand. [ 106 ] “According to the feudal usages adopted in Scotland all heritah
property is supposed to be held under some superior over-lord. sometimes, though rarely, occurs, that the immediate superio when he conveys or feus his property, prohibits the disponee) vassal from sub-feuing the lands, or from granting any conveyan of them, to be held of himself, or of any other superior than the oj, by whom the original conveyance is granted. Even when such clause, prohibiting sub-infeudation, occurs in a title, it is not he to apply to heritable securities, which are mere burdens upon th property, and which are in general expressly excepted in su prohibitory clauses. Accordingly, the uniform practice of pi paring heritable securities is to grant an obligation engaging infeft the disponee or lender of the money, by the double mani of holding, either of and under the grantor's superior, which called a public holding, or of and under the grantor of the bo himself, which is called a base holding. This last creates a spec of sub-feu, which, as soon as the infeftment is recorded, is effect: gainst all third parties. If a public holding be intended, the STEVENSON bfeftment is not good till confirmed by the superior under whom
ROWAND. he lands are to be held, because no one but himself can authoize, or grant warrant, for such infeftment. Even where there is he most express prohibition against sub-infeudation, the uniform ractice is to grant warrant for the double manner of holding ; lecause the base holding, though not good against the original uperior, is effectual against all the world beside. It is the uniform ractice, therefore, in preparing heritable securities, to create a ase holding, not merely because it is a very rare occurrence in ny set of title-deeds *to find this prohibited, but also because, where [ *107] his occurs, the superior has generally no interest to challenge it, nd no other person can do so. On the other hand, no cautious nd intelligent practitioner ever thinks of framing an heritable ecurity, with a public holding only, because till the infeftment hall be confirmed by the superior, it is utterly invalid. Accordingly, Il recently, no example of this kind had occurred in practice, but ime law agents in Glasgow, either from ignorance of the feudal sages, or from a desire to innovate upon established forms, or om mere inadvertence and carelessness, have prepared heritable scurities, omitting the base holding, and giving infeftment to be eld of the grantor's superior, while, at the same time, they have eglected to apply for or obtain the superior's confirmation to this roceeding. The consequence is, that the intervening bankruptcy I the grantor of the bond, before such confirmation was obtained, As rendered the security altogether void and useless. That such
blunder is a very gross one on the part of any legal practitioner mnot be doubted. Every style-book, as well as the invariable tactice of all men of business, would be sufficient to show any rson, of the most moderate acquirements (even though he were tally ignorant of the principles which regulated the different auses), how a proper heritable security should be framed." Sir Colin and Captain Campbell therefore objected to Wardrob's curity that it must be postponed to theirs, as it was a public olding unconfirmed, on which there could be no valid infeftinent
the lands. But in answer to this it was urged, that as the ecept of saisine was general and indefinite, and made no eference to the manner of holding, the infeftment upon it might [ *108 )
considered as applying to a base holding and constituting a base 2. On the other hand it was contended, that the precept of saisine ust be construed in reference to the manner of holding specified
STEVENSON in the previous part of the deed, and that the saisine was therefore
null without confirmation by the superior. The point was brought before the Court by petition from Sir Colin and Captain Campbell, praying that Wardrob might be postponed in the rouping of the creditors; in other words that it might be found that his infeftment was not a base infeftment, but a public infeftment unconfirmed.
When this point came first to be discussed before the First Division of the Court of Session, a considerable difference of opinion prevailed upon the Bench. Two of the Judges were of opinion that, as the precept of saisine made no l'eference to any manner of holding, the infeftment might be construed base; but the majority were of a different opinion, and held, that where any manner of holding was specified in the deed, the precept of saisine, and the infeftment following upon it, must necessarily be construed in reference to this manner of holding; and, consequently, that Mr. Wardrob's infeftment was null till confirmed by the superior. All the Judges, however, concurred in opinion that the agent who in preparing such a security had deviated so far from the ordinary form as to raise such a question, was much to blame. When it was so easy to avoid any question, and to render the security undoubted, by merely inserting the usual clauses to be found in every style-book, an agent who deviated from the common course
incurred much responsibility; and even though his new form might [ *109 ] not have been *found to invalidate the security, he was unquestion
ably to blame for preparing it in such a strange manner as to raise a question regarding it, and to involve his employer in a litigation as to its validity.
The question at issue appeared doubtful to some of the Judges, and there was a natural leaning to support, if possible, a security, of which the competing creditors had full knowledge, when they lent their money to Mr. Campbell. The Court, accordingly, upon advising a reclaiming petition for the present respondent, with answers for Sir Colin and Captain Campbell, being desirous to sift the matter to the bottom, and to ascertain whether legal grounds might not be found for supporting the security in question, appointed a hearing in presence. But the result of this hearing was to satisfy all the Judges, with the exception of Lord Hermand, that the blunder which had been committed by the appellant was fatal to the security, and that it was impossible, consistently with feudal rules, to hold the infeftment in question as a base infeftment, or in any other light than as a public infeftment unconfirmed ; or,