GEORGE OGILVY v MRS ANN ERSKINE or WATT (Court of Session)

The marriage-contract contained neither disposition, procuratory of resignation, nor precept of sasine, for vesting the lands in terms of the obligation; and Francis Erskine, the party to the marriage-contract, died in 1776, without executing any conveyance in implement of the contract.

Of the marriage there was issue an only son, Francis, afterwards lieutenant-colonel in the army, and two daughters; the elder of whom was Mrs Margaret Erskine, afterwards Ogilvy, spouse of George Ogilvy, Esq. of Baikie, and mother of the pursuer; and the younger, Mrs Ann Erskine or Watt, the defender.

The lands were disponed to the trustees heritably, ‘but redeemable always, in the terms, and upon the conditions after mentioned, in case the trustees shall not sell and dispose of the lands and others after expressed; but in case of such sale thereof, to and in favour of their disponees, &c. absolutely and irredeemably.’

Having accepted of the trust, the trustees, as provided for by the deed, proceeded to make up titles to Kirkbuddo in the person of the truster, by having him served heir in special to his father in March 1777, and by infefting him in a precept from Chancery, following on the retour of the special service.

The trustees themselves, in April 1777, took infeftment on the precept contained in the trust-deed, which sasine was never made public, and continued to possess the estate of Kirkbuddo under the trust-deed till August 1787, when, having made no sale, they reconveyed to Colonel Erskine, ‘his heirs and assignees whomsoever,’ with a declaration that they ‘were fully denuded,’ and that the lands were ‘absolutely free, relieved and disburdened of the foresaid pursuer's trust-right, in all time coming.’