“As to the first, no want of possession. It is a lucrative succession, though under entail and trust. Sir Alexander represents his father—lives at Gargunnock, and receives from the trustees that portion of the rent which is allowed him. The entail dispones the estate in his favour as institute; and he is apparent heir of investiture. The possession of the trustees is his possesion; and civil possession is sufficient. But the objection is, that his title is defeasable, as the trustees may sell to a purchaser, who may execute the procuratory. The renunciation of little consequence, as it only binds them personally, and it is not recorded in the register of sasines; and even if it was, I doubt if it be a feudal method of securing Sir Alexander in the superiority. But, independent of this renunciation, can it be said that he is divested of the right of apparency, by a settlement in his own favour, or, which is the same thing, in trustees for him, the dominium directum still remaining in hereditate untaken up? The objector must be able to show that a trust conveyance, for the purpose of management, and for the heir's own behoof, quoad the reversion, is an alienation from the heir.
“Sir Alexander is entitled to take a charter upon the procuratory in the entail, or, which is the same thing, as to third parties, to be served upon the former investitures, and so to complete the feudal right in his person, which is not inconsistent with the feudal right being also in the trustees. Query: Would not his wife be entitled to her terce, or to the jointure allowed by the entail, upon his making up such titles? Frazer of Lovat in a similar situation. Suppose the trustees also infeft upon a charter from the crown, would this entirely denude him of the feudal right of his estate, and his wife of the terce? What if Sir James was living, and had put his estate under trust in his own life, would this have been a good ground for turning him off the roll? Case of Sir Lud. Grant is very much in point, also case of Crawford in Renfrewshire, who was in worse circumstances. Infeftment is really in security till a sale actually takes place, which will of course denude him, but, in the meantime, the estate belongs to nobody but him.
“The division in 1740 is clearly null, but that of 1753 continued the rule for 37 years, which bars objection.”