The Earl sought a declarator to allow the sale of land. Others said it was subject to rights of ntail. The court referred to an uninfeft proprietor as a ‘personal fee’. Voluntary transmission of feudal subjects is effected by a dispositive act followed by tradition of the subject to the transferee. ‘The legal effect of such a disposition, even before it is followed by tradition of the subject disponed, is twofold. In the first place, it operates as an actual alienation of the subject to the disponee; and it vests in him most of the essential attributes of ownership. In particular it vests in him not only a right to possess the subject and to reap its fruits but also a power to sell it; to dispone it for either onerous or gratuitous causes; and to settle the estate by mortis causa dispositions and deeds of entail. The right so created is transmissible from one person to another by voluntary disposition; and on the death of any person, in whom it is vested, it is transmissible to his heir by general service; and each person in whom it is vested successively has the powers and privileges of ownership above mentioned. This right is usually called a personal fee – a denomination importing not that the subject of it is moveable, for it is truly heritable, but that it is not feudal, and indicating at the same time that, even while not followed by solemn tradition or infeftment, the right is still sua natura a right of fee. Secondly, such dispositive act, although it operates as a de praesenti alienation, and not merely as an obligation to alienate, does farther by implication impose upon the disponer an obligation of a different kind – viz a consequent obligation (as Lord Stair calls it) – as to delivery or tradition of the subject disponed.’
References: (1862) 24 D 936, (1863) 4 Macq 469
Judges: Lord Westbury LC
Jurisdiction: Scotland
This case cites:
- Appeal from – Earl of Fyfe v Duff IHCS 1861
The Earl of Fife and his trustees sought a declarator that they had power to sell certain lands and to receive the price and use it at their pleasure. The defenders included the heirs called to the succession by various deeds. Some of the heirs . .
((1861) 23 D 657)
This case is cited by:
- Appealed to – Earl of Fyfe v Duff IHCS 1861
The Earl of Fife and his trustees sought a declarator that they had power to sell certain lands and to receive the price and use it at their pleasure. The defenders included the heirs called to the succession by various deeds. Some of the heirs . .
((1861) 23 D 657) - Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004
A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the . .
(2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.194219