When the owner makes the alienation by his attorney, the latter must have a special authority for that purpose. It is not sufficient that he be the general attorney of the grantor, universorum procurator, even although there should be committed to him libera administratio, or although the owner should authorize him to do omnia quæ ipse præsens posset. (a) The letter of attorney or mandatum must also be rendered a judicial act. The alienee may be a party to the effestucatio by an attorney, and in this case it is not necessary that the latter should have received a special power for that purpose. Not only a general power will be sufficient, but even without any power the delivery may be rendered complete by the subsequent adoption of the acceptance made for him and in his name by a third party. (b) The person by and to whom the alienation is made must concur in the intention to make and receive the dominium. The effestucatio expresses the act not only of the one in parting with the dominium "prædium tanquam bonum proprium effestucando resignavit," but that of the other in accepting it, "cui idem E. suum assensum dedit." (c) The concurrence of the grantor and grantee in the specific subject of the alienation is equally necessary. Hence the effestucatio contains a description of the lands, situation, and boundaries. Notwithstanding the grantee was already in possession under a contract of lease, it was not the less necessary that the effestucatio should take place in order to transfer the dominium. (d) The effestucatio ordinarily expresses that the price for (a) Sande, de Effest. c. 4, n. 3, 7, 16. (b) Ib. c. 5, n. 3, 17. (c) L. Goris, Supp. ad Sande's Effest. c. 2, n. 1, c. 5, n. l. (d) Ib. c. 2, n. 20, et seq. Hugo Grotius, Introd. ad Jurisp. Holl. lib. 2, c. 5. which the property is sold has been paid to the vendor. In this case, although the payment should not have been made, the dominium passes to the purchaser. If there be no mention of the payment of the price, it is to be presumed that credit is given for it, and therefore, that in conformity with the principle of the civil law, the dominium is transferred. It seems the vendor, in a competition with the purchaser's creditors, would have no lien for the purchase money. Hence it is the usual practice, when the purchase money is not paid, that the property is sold, subject to a special hypothec for it. (a) The act is expressed to be founded on such intervening or preceding contract of sale, gift, or exchange as it is competent for the parties to enter into, venditione interveniente licitá. It expresses that the grantor effestucando resignavit prose et hæredibus; but although there should be no mention of heirs, the grantee would take the absolute estate in perpetuity, and they would be entitled to it. (b) When the actus effestucationis has taken place coram judice et præsentibus judicialibus, the dominium has so completely been transferred from the grantor and vested in the grantee, that it is not in the power of either to recede. Hence it has been considered that, although the subscription of the judge and the other parties be necessary, that writing is not an essential part of the effestucatio. It is entered amongst the public acts, and a protocol of it is granted whenever the original is lost. (c) The term effestucatio has long since ceased to be used in designating the transfer of the dominium. This act has since been described by the term opdracht, or trans (a) L. Goris, Supp. ad Sande's Effest. c. 5, n. 21, 22. (c) Ib. c. 6. port. "Quod quis isto actu rem suam, et quicquid in eâ juris habet in alium transferat." (a) The transport is made in British Guiana before the judge of the commissary court, after the notification mentioned in the preceding chapter has been given in the Gazette. The deed in which it is expressed is entered instanter amongst the acts of court, and becomes a record. (b) The transport is subject to the same rules as the effestucatio. It is necessary that there should be a special power to authorize an attorney to grant a transport for an absentee, but the power need not be recited in the act of transport. It must, however, be produced before the commissaries, and entered amongst the acts of court. Although the agreement for the sale, or the sale itself, may be by parol, yet as the transport must be passed before the commissioners, and is entered amongst the actes of the court, from which the secretary gives the parties une grosse, the sale, or rather the evidence of the sale, is always in writing. (c) The production of this instrument affords the proof of the preceding title on which this judicial act of delivery has taken place. (d) (d) Goris, Advers. Gelr. Tract. 3, part 1, c. 1, n. 4, 10, 13, 14, et seq. Sande, de Effest. n. 7. (b) Edictum Caroli V. 10 Maii, 1529, vol. 1, Placit. Holl. p. 373. Edict. Ord. Holl. vol. 1, Placit. Holl. p. 1957. Politic. Ordinatio, anni 1580, art. 37, 38. Hugo Grotius, Manud. ad Jurisp. Holl. lib. 2, c. 5, n. 15, et seq. Groenewegen, ad tit. Inst. de Oblig. ex Consensu, and ad tit. Cod. plus valere quod agitur, quam quod simulate concipitur. Van Leeuwen, Cens. For. part 1, lib. 2, c. 7, n. 6. P. Voet, ad § 44, Instit. de Rerum Divis. et in Tract. de Mobil. et Immobil. c. 19, n. 4, 5. A. Matth. Paræm. 3, n. 7, et seq. Ib. Paræm. 5, n. 14, 15. Voet, lib. 41, tit. 1, n. 38. (c) Manner of Proceeding, 1774, art. 4. (d) Fachin. Controvers. lib. 2, c. 5. Menoch. de Præs. lib. 6, præs. 5, 7. Neostad, Cur. Sup. Decis. 66. Voet, lib. 6, tit. 1, n. 20, 24. The notices and advertisements, which it is required should precede the passing of the transport, have been stated in a preceding chapter. In the Cape of Good Hope the transfer of immoveable property is governed by the former law of Holland, and the act of transport is passed in the same manner as in British Guiana. (a) In Ceylon the provisions of the statute of frauds have been adopted by the regulation of the 25th of January, 1817. It is enacted, "that no promise, contract, bargain, or agreement, unless the same shall be in writing, and signed by the party making the same, or some person lawfully authorized by him or her, shall be of force or avail in law, for the sale or purchase of landed or immoveable property, or of any security or incumbrance affecting the same, or for mortgaging or pledging any such property or such security, or any lease or interest, or any assignment thereof, in any such property, other than a lease at will, determinable at such period, not exceeding six months, as may be according to the custom of the country." (b) such convey It is not essential to the validity of any ance, or of any lease, that it should be written or executed before, or registered by any notary public, or other officer, saving, nevertheless, to notarial writings the preference by law established. (c) (a) Proclamation, July 20th and Sept. 22nd, 1798, June 11th, 1801, July 7th, 1807, Jan. 2nd, 1818. (b) Regulation, Jan. 25th, 1817. (c) Stamp Regulation, Jan. 25th, 1817. SECTION II. delivery, aND THE INSTRUMENT OR TItle of transfer BY THE LAW OF SCOTLAND. Tradition essential.-Constitution of the feudal right.-Investiture proper and improper.-Charters a me and de me.-Contents of.-Charters original and by progress.-Precept of seisin.-Symbols of possession delivered.-Instrument of seisin.-Seisin where lands are not contiguous. -Confirmation.-Resignation ad remanentiam.—In favorem.-Necessity of writing for the transmission of heritable rights.-Manner of attestation. By the law of Scotland, tradition, or the delivery, real or symbolical, of possession by the proprietor, with an intention of transferring the dominium or property to the receiver, is essential to the transfer of that dominium. (a) The feudal right is constituted by charter and seisin, and the manner in which it is constituted is called investiture. According to the earlier feudal customs of Scotland, there was neither charter nor seisin, and the right was completed by that form which was styled a proper investiture, and was extremely simple. The superior, who granted the right himself, delivered the possession to the vassal on the ground of the lands, and in the presence of the pares curiæ. By this delivery the vassal's right was perfected. There was no declaration in writing made by the superiors, who at that period were not always able to write. In the progress of time, in order to preserve the memory of the grant, the superior gave on the ground of the lands a declaration of it in writing; and in token of his consent, both he and (a) Erskine, b. 2, tit. 1, § 18. A A A 2 |