Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Lord Borthwick
v.
The Laird of Gallowsheills

Date: 23 March 1622

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The lands of Howlatstoun, Prestoun, Brock-house, and some other lands being united by the B. of St Andrew's charter, superior of the whole lands, and of the lands of Halltree, and erected in a tenantry in favour of the Lord Borthwick, called the tenantry of Halltree; thereafter the good-man of Gallowsheills comprises the lands of Halltree, with annexes and connexes, parts, pendicles, and pertinents, and some other of the same lands particularly which are annexed to Halltree by the said Charter of Union. In the which comprising the lands of Howlatstoun, and some others of the united lands are omitted, and not specially comprised. After, Gallowsheills resigns the comprised lands in favours of the Lord Borthwick, who is infeft therein by the bishop, upon that resignation, conform to the words foresaid of the said comprising; another thereafter takes a gift of the non-entry of the lands of Howlatstoun, which were severally comprised. Whereupon declarator being sought,—the Lords found this exception relevant to elide the non-entry, viz. that the Lord Borthwick was infeft upon the compriser's resignation in the lands of Halltree, with annexes, connexes, parts, pendicles, and pertinents thereof. Which infeftment and comprising of the lands of Halltree, bearing that clause of annexes, connexes, &c. the Lords found comprehended all the whole lands which were before annexed by the Charter of Union of Halltree in a tenantry: albeit that the donator to the non-entry alleged that the comprising and charter following, whereupon the exception was founded, comprehended not the tenantry; and that the tenantry was not comprised, nor the whole lands of the tenantry, but only the lands of Halltree, and not the whole tenantry thereof, and of some special lands of the tenantry, which are specially comprised, and as much other lands of that tenantry omitted out of the comprising, whereto the comprising under that clause of annexes, &c. could only be extended; seeing that clause could only be interpreted, and extended to the pertinents of the special lands enumerated in the comprising, and the other lands omitted out of the comprising could not be drawn in under the same. Notwithstanding of the which answer, the exception was sustained; and the Lords found that the lands of Halltree, with the annexes, &c. thereof, being comprised, was all alike as if the tenantry wholly had been comprised; and therefore found the infeftment extended to the whole, and so purged the non-entry of the lands acclaimed, which were a part of the tenantry.

Act. Belshes. Alt. Oliphant. Gibson, Clerk.

Vid. 16th Jan. 1623, Mr Hary Aitkine, where this concerning Union was thereafter otherwise decided by the Lords.

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