Legal Irritancy upon assigning or subsetting. - Rental Rights. - Whether Marriage be such an Assignation as to infer Irritancy?
Earl of Roxburgh v. Gray
Date: 19 March 1622 Case No. No 21.
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In an action betwixt the Earl of Roxburgh and Robert Gray, it was found, that the setting of tacks by a rentaller, whose rental contained a clause irritant, if he made any alienation or disposition of the rental, was a cause to annul the same; but that the setting a tack to the rentaller's eldest son, was not a cause to infringe the same.
Fol. Dic. v. 1. p. 484. Haddington, MS. No. 2618.*** Kerse reports this case.
The Lords found a rental, bearing this clause, that it should not be lawful to annalzie the same, null, because the rentaller had set tacks of the rentalled lands, for certain years, which were expired; and so found, that the words of “not alienation” did include locations.
Item, In the same cause, the Lords found, that the assignation of the rental by the father to the eldest son, could not be a cause of forfaulture of the tack.
Kerse, MS. fol. 119.*** This case is also reported by Nicolson.
Reduction of a rental, set by Francis, Earl of Bothwell, to Robert Gray, of the mill of Midleen, and certain lands within the Abbey of Kelso.—Ratio, It is provided in the rental, that, if Gray make alienation or disposition, in hail or in part, to whatsomever person or persons, without consent of the immediate superior, first had and obtained, then the rental to be null. And true it is, Gray has set the tack libelled to the persons libelled; at the least, has disponed the hail land and mill to Robert Gray, his son, and possessed him therein, without the Earl's consent, now superior. Alleged, The clause irritant, and general prohibition of alienation, cannot be extended to the disposition made by Gray to his eldest son, being the person whom, by the law of God and man, he is obliged to entertain, bring up, and provide, and who is to be heir, no more than an alienation of ward lands to the eldest son could infer recognition; and true it is, that Robert, to whom the defender has disponed, is his eldest lawful son. Finds the allegeance relevant to elide the disposition; and assign to prove, and siclike assign a day to the pursuer to prove the summons anent the setting of the tack.
