INFESTMENT, is the act of giving symbolical delivery or possession of heritable subjects, either in absolute property, redeemably, or in liferent; or in security, or relief of, any obligation. It is called in England and Scotland seisin or sasine. Without this act, the deed conveying or burdening an heritable subject, is incomplete, and may be defeated by the subsequent deeds, or by the legal diligence, of the creditors of the donor. In all civilized countries some ceremony is required to mark and give warning to the public, of the transference of a right in lands. In the Roman law, as in our own, the distinction was recognised between a right or claim to the subject, and a right in it,—the latter requiring something to denote the possession which is necessary to complete the right. As actual delivery or possession may sometimes be inconvenient or impracticable, symbolical delivery in presence of witnesses is in many cases allowed both in England and Scotland, and has been so from an early period. The like is common among the other nations of Europe. Something of the kind existed among the Jews (see Ruth iv., 7). In our country writing must be employed to denote the various and changing conditions of a transference of heritable property, which become necessary by the progress of commerce. In England, the seisin following on such writing is given by going to the land, and there, in presence of witnesses, called to attest the transaction and give notoriety to it, the feoffee or his attorney delivers to the feoffee or his attorney, a clod or turf, or a twig or bough there growing,
saying, in substance, "I deliver these to you in the name Infestment of seisin of all the lands and tenements specified in this deed of conveyance." If it be a house the seller walks out, giving the ring or latch of the door to the buyer or his attorney, who enters. In these cases, the manner, place, and time of the ceremony, are endorsed on the deed, together with the names of the witnesses. In judicial proceedings, if the plaintiff recover in an action whereby the seisin or possession of land is awarded, writs are directed to the sheriff of the county, commanding him to give actual possession to the plaintiff, which may be done forcibly if necessary; or, if the possession be yielded peaceably, by symbolical delivery, which is held to be a sufficient execution of the writ. In Scotland when lands are voluntarily sold or burdened, the donor usually embodies in the disposition or bond what is called a precept of sasine, for infesting the donee or creditor. In virtue of that precept it was, until lately, indispensable that the bailie of the granter should appear on the ground with a notary public and two witnesses, before whom the donee or his attorney delivered the conveyance to the bailie, and required him to execute the precept. The bailie then delivered the conveyance to the notary to be read and published, after which the bailie delivered the symbols to the attorney, who, having received them, took instruments in the hands of the notary; which ceremonies were narrated in a document called the instrument of sasine, subscribed by the notary and witnesses. In that instrument all conditions and real burdens, designed to be effectual against third parties, were engrossed. The symbols consisted of earth and stone for the lands or tenements, with the addition of a penny for any right of annual rent; a sheaf of corn for parsonage tenns; a net and cable for fishings; clap and happer for mills, &c. The instrument of sasine was then required, by the Scotch statute 1617, c. 16, to be registered for publication within sixty days from its date, either in a general register of sasines, kept at Edinburgh for Scotland, or in a particular register appointed by the statute, which most frequently, though not in every case, was the shire within which the lands are situated. If the instrument were not recorded within the sixty days, it was of no avail against third parties; though it remained effectual against the granter of the precept and his heirs. In the case of two competing and duly recorded instruments, the priority of registration, though it were but an hour, gave the preference. It must then be engrossed at full length in the public record; any omission or essential error being fatal. Much of this has been simplified by the recent statute of 8th and 9th Vict., c. 35, which allows the precept in reference to property not held burgage to be abbreviated in this style,—"I desire any notary public to whom these presents may be presented, to give to the said A. B., or his foresaid sasine (or liferent sasine, &c., as the case may be), of the lands and others above disposed, but always under the burden of the real lien (as the case may be) before specified." The notary public, then, without going to the lands, or delivering any symbols, extends his instrument, narrating shortly the deed containing the precept, with any assignments of it that may have been granted; and narrating also all the real burdens or conditions intended to be effectual against third parties, and, after inserting the precept, he concludes the instrument with words like these,—"In virtue of which precept, I hereby give sasine (or liferent sasine, &c.) to the said A. B. of the lands and others above described (adding in case of burdens or reserved rights, &c.), but always under the burden of the real right of, &c. This instrument, subscribed by the notary before witnesses, may be recorded at any time, and it is effectual against third parties from the date of its being presented and entered, in order to be recorded, which is now held to be the date of the infestment. All this is extended to lands and other heritages in Scotland held in burgage tenure by the 10th
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and 11th Vict., c. 49. A search, therefore, in the different records—that is, in the general and particular, or burgh records, according to the locality of the heritage—shows the incumbrances or burdens affecting infestment; and it is held to be a breach of an agent's duty to his client to omit to cause such a search to be made in these records, and in others kept for the purpose of publishing the heritages in Scotland, which are under legal attachment, and the parties who are inhibited from doing anything by which their heritable property may be affected. Without a recorded infestment, actual possession of lands in Scotland does not secure a buyer against the subsequent acts of a seller, or the diligence of his creditor; and with it actual possession is not necessary. In all competitions, the priority of the presentment for registration of an instrument of sasine, gives the preference. The ancient forms are now in disuse; they were expensive, and their multiplicity often occasioned fatal errors; while practically their object, that of giving intimation to the public, is equally attained by recording the simplified instrument, which is readily discovered by a search in the public records. (M.L.)