The institutions of the law of Scotland by Sir George Mackenzie ...

Tit. II. Of the difference, betwixt Heri∣table, and Moveable Rights.

HAving in the former Title cleared, how we acquire Rights, we come now to the division of them.

The most comprehensive

division of Rights amongst us, is, that whereby they are di∣vided into Heritable, and Moveable Rights.

Heritable Rights in a strict sense, are only Lands, and all summs of money, and other things which can be moved from one place to another are moveable but that is only coun∣ted Heritable in a Legal Sense, which belongs to the Heir, as all other things which fall to the Executor are moveable, and so sums of money, albeit of their own nature they are moveable; yet if they were lent for Annualrent they were of old repute heritable.

For understanding where∣of it is necessar to know that albeit by the Cannon Law all Annualrents were forbidden, as being contrare to the Na∣ture of the thing, money

being barren of its own na∣ture: yet the reformed Churches do generally allow it; nor were the Iews pro∣hibited to take Annualrent from Strangers.

Before the year 1641 all Bands, and sums, bearing Annualrent, were Heritable, as to all effects so that the Exe∣cutor, who is Haeres in mobilibus, had no interest in, nor share of such Bands, but they be∣longed intirelie to the Heir; but that Parliament finding that the rest of the Children, beside the Heir had no provision by Our Law, except an equall share in the moveables, they therefore ordained that all Bands for summs of money should be moveable, and so belong to the Executors; except either the Executors,

were secluded, or the debitor were expresly obliged to infest the Creditor, which is like∣wise renewed since the Kings Resturation* 1.1: For in these cases, it was clear that by the disti∣nation of the defunct, (which is the great Test in this case) these sums were to be Heritable; and yet all sums bearing An∣nualrent, are still Heritable in so far as concerns the Fisk, or the Relict; so that if a band bear Annualrent, to this day the Fisk cannot claime any right to it, as falling under the Rebells single Escheate, (whereby when he becomes Rebel all his Moveables fall to the King;) nor has the Relict any right to a third of it, as she has to a third of all moveables, the Law▪ having presumed that Relicts will be still suffici∣ently

secured by their contracts; but whether the sum be Heri∣table, or moveable, all the by∣gone Annualrents, and gene∣rally all bygones are moveable, as to all intents and purposes, and so fall to Executors, and to the Fisk, and to the Relict; because bygone rests are lookt on as money lying by the debitor, they being already payable, as all obliga∣tions bearing a tract of future Time belong to the Heir.

So far does the Law defer to the will of the Proprietar, in regulating whither a sum should be Heritable, or Move∣able; (the Law thinking that every man is best Iudge how his Estate shal be bestowed;) that if a man destinate a sum to be imployed upon Land or

Annualrent, this destination will make it Heritable, and to be∣long to his Heir; or though the sum was originally secured by a moveable band, yet it may become heritable by the creditors taking a superveening heritable se∣curity for it, or by comprising for his security; but yet the Creditors design is more to be considered, than the superveni∣ent right; as for instance, a sum may be moveable ex sua natura, and yet may be secur∣ed by an heritable surty; as in the case of bygone annualrents, due upon infeftment of annual∣rent, which are unquestionab∣ly moveable of their own na∣ture, and yet they are heri∣tably secured; and even Exe∣cutors may recover them by a real Action of poynding of the ground: And, if a Wedset bear

a provision, that notwithstand∣ing of Requisition, the Wedset shall still subsist, the requisition will make the sum moveable, though it continue secured by the Infeftment; as also, sumes ab initio Heritable, may be secured by an Accessory moveable security, without altering their Nature; as for instance, if one take a Gift of Escheat for se∣curing himself in Heritable sums; this does not alter the Nature of the former Heri∣table Right.

Though a sum be Heritable, yet if the Creditor to whom it is due require his money, either by a charge or requisition it be∣comes moveable, for the Law concludes in that case, that the Creditor designs rather to have his money, than lying in the Debitors hands

upon the former security; and if it were lying in money beside him it would be moveable: and a requisition to one of the Cautioners will make it move∣able, as to the Principal and all the other Cautioners; But a charge on a band wherein Exe∣cutors are secluded, will not make the sum moveable, for the design of the Creditor is pre∣sumed to continue in favours of the Heir, till the sum be payed, or the Band innovated; but it has been otherways decided of late; And for the same Reason a requisition used by a Wife, who has a heritable sum, that falls not under the Ius Mariti, will not make it moveable, since it is presumed she designed only to get payment, but not to give it to her Husband.

But if the Creditor who re∣quired

his Money take annual∣rent after that Requisition, it is presum'd that he again altered his Inclination and resolved to have it Heritable, & to continue due by vertue of the first Security

Though a Band be heritable, as bearing annualrent, yet be∣fore the terme of payment it is moveable, as to all persons.

From all which it is clear, that some sums are moveable as to the Executor, but not as to the Fisk or Relict, and some may be moveable, as to the Debitor and his Executors, and yet may be Heritable as to the Creditor and those representing him, as for instance, an obli∣gation, to imploy a sum due by a moveable band, upon Land or annualrent for the Heirs of a Marriage, that sum as to the Creditor would be Heretable, yet

quo ad the Debitor it would re∣main moveable.

Notes

• * 1.1

  K. C. 2 Par. 1. Act 32.