In questions between parents and children, who understood to be fiar.
Subject_3 SECT. I.
Right taken conjunctly to parent and child.
Gray v. Rollock
Date: 24 March 1570 Case No. No 38.
A tack set to a father and his natural son conjunctly, and longest liver of them two, and their assignees, may not be disponed by the father in prejudice of the bastard, but for his lifetime, and for his own part.
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In ane action perseued be Mr Thomas Gray against Mr David Rollock, for production and deliverance to him of ane liferent tack, made be the Abbot and Convent of Scone, to umquhile Sir Hew Gray, father to the said Mr Thomas, and to the said Mr Thomas conjunctly, and to the longest liver of them two, of the lands of ——; the tack being producit, the said Mr David allegit, That the said tack sould not be deliverit to the said perseuer, because the said umquhil Sir Hew, father natural to the perseuer, who had obtained and conquest the said tack, the said Mr Thomas then being an infant, and also the said Sir Hew being first in the said tack, whilk buir in effect thir words, “to Sir Hew Gray, and Thomas Gray his son, the langest liver of them two, and their assignees;” whilk words made the said Sir Hew, being first in the assedation, title to annalzie and dispone thereupon at his pleasure, in respect that it buir to their assignees; and so thereby he analziet the said assedation to the said Mr David, who thereafter obtained an heritable infeftment of the said lands acclaimed in feu-farm, whairfor the said Mr Thomas could have no right to the said lands, albeit the said assedation were deliverit and restorit to him again; and thairfore could have no interest neither to acclaim the assedation, nor yet the lands contained therein. —The perseuar replyit, That the said umquhil Sir Hew could not dispone the said tacks and lands langer nor for his ain lifetime, because he could pretend no title thereto be the said assedation, except for his ain time, and that for the ane half only, quia pater naturalis atque filius partes fecisse ab initio arbitrantur dispositionis.—The defender answerit, That the tack being set in such manner to the father and the son, the father may dispone the same for the son's lifetime, as was practicate in an action of removing, intentit be the Laird of Drumlaw against N. Abercromby, for removing frae the lands of P.; and also in heritable infeftments of tailzie, the first in the infeftment, albeit he be an extranean to the rest of the tailzie, may dispone the tailzied lands frae the rest.—The perseuer answerit, That albeit the father may defraud his lawful son whom he has in sua potestate, and that he may dispone that thing whilk he has preparit for his son, the like is not betwixt the father and his bastard son, qui extraneus reputatur intuitu patris naturalis: Igitur, as to the similitude of the heritable infeftments of tailzie, cannot be drawn to this present question of liferent tacks, for he that is seased heritablie may freely dispone, be the practic; albeit it is otherwise be the law, either civil or municipal; but he that has right for his ain lifetime, is more like to ane wha has his right for certain years, as five, six, seven, or nine years tacks, whereof the havers may not make langer right, nor can endure langer nor the said years be past.——The Lords fand the reply verie good, and in respect repellit the defender's exception, and ordainit the assedation to be delivered the perseuer, cum effectu et omni causa quod inde sequi potuit. See Removing.
