M'LEOD v M'KENZIE (Court of Session)

Mr Colin M'Kenzie, being infeft on the precept in the crown charter, claimed to be enrolled as a freeholder of the county of Cromarty; and his claim having been sustained by the freeholders, Mr M'Leod complained to the Court of Session; and pleaded —

I. That Donald M'Kenzie having conveyed his whole right to the estate, property as well as superiority, to a trustee for his creditors, the title of the respondent was defeasible at the pleasure of the trustee. Although the trustee had only taken infeftment on the precept, yet it was open to him at any time to have the infeftment confirmed; and such confirmation, although posterior in date to the title of the respondent, would be preferable, and exclude that title; because the right of the respondent was confessedly and ex facie gratuitous.

Besides, the right of the respondent is defeasible at the will of the trustee, over which he has no control. And although the trustee may be mandatary for the truster, who stands upon his original title till he is divested by a sale to a third party, yet he is not mandatary for the respondent. The right of the respondent, if good for any thing, is opposed to that of the trustee; so that, instead of being absolute, it is defeasible, and dependent on the will of a third party, with whom he has no connexion, and over whom he has no control.

II. The disposition, being in violation of the conditions of the entail, as being an alteration of the order of succession in the event of heirs-male of the granter's body, is, therefore, defeasible at the instance of the heirs of entail; and a title ex facie defeasible, at the pleasure of third parties, cannot support a freehold qualification.

It is in vain to say that, though this doctrine may be applicable to the truster himself, it is not applicable to his disponee, to whom the trustee would be preferable in the case of a fee-simple estate. If the trust be a mere burden on the truster's right, it is plainly inconsistent with feudal principle to allege the incompetency of the conveyance of that right to a third party.