Bishop of Aberdeen v. His Tenants, and the Lo Drumlanrig's Son.
Date: 30 June 1622 Case No. No 4.
A Bishop granted a pension out of his patrimony during the pensioner's life, with power to assign at any time before his death. The pensioner assigned two years before his death, retaining possession. The assignee claimed after the pensioner's death. The Lords preferred the Bishop's successor on act 139. Parl. 1592, there having been no intimation.
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In a double poinding pursued at the instance of some of the tenants of the bishop-lands of Aberdeen against the L. Corss, being then Bishop, on the one part, and Douglas, son to the Lo. Drumlanrig on the other part, either of them claiming right to the duties of the lands, the Bishop as a part of the patrimony of the Bishoprick, and the other claiming the same by virtue of a pension given by umquhile ———— Bishop of Aberdeen, to ———— Douglas of Tofts, during his lifetime, containing power to transfer the same to an assignee at any time in his lifetime, and upon the which pension decreet conform was obtained by the pensioner, and continual possesion had by him of the duties contraverted, which were assigned in the pension for satisfaction of the same; which pensioner, conform to the clause and power of the pension, had transferred and assigned the same in favours of the said ———— Douglas, the other party now complained upon, by a lawful disposition of the same made to him by the space of a year and a half, or two years at most before his decease, and who deceast but by the space of a year at the most before the dependence, after whose decease the said ——— Douglas, to whom the pension was assigned, had intented his action of letters conform, and in respect thereof, he alleged that he ought to be preferred to the Bishop. The Lords repelled the pensioner's allegeance, and found the Bishop had right to the duties foreasaid, and not the pensioner's assignee, because it was alleged by the Bishop, that the pensioner, notwithstanding of his translation made in favours of this party, had remained in possession of the said pension during his lifetime, and the assinnee never apprehending possession, nor making intimation of his right, could not claim the right after his author's decease, which took no effect by possession in his author's lifetime, as said is, nor no intimation being made thereof; which allegeance of want of possession and intimation in the pensioner's lifetime, the Lords found relevant to cause the assignation become simulate and extinct; albeit it was answered, That the want of possession could not make a right which was lawful of itself, and which was made by one having power to make the same (and whose power was confessed by the party) to fall, seeing the pensioner, or his executors, would be countable to the party defender for the duties uplifted and possest by him ever since he was denuded; which was repelled by the Lords, and the Bishop's allegeance found relevant, as said is.
Act. Nicolson sen. et Lermonth.Alt. Niaolson jun. et Mowat.Clerk, Scot.
Fol. Dic. v. 2. p. 55. Durie, p. 27.*** Haddington reports this case:
In a double-poinding, the Bishop of Aberdeen, and Douglas, son to the Laird of Drumlanrig, being parties, Douglas alleging, That he should be answered and obeyed, because he was assignee constitute by umquhile Archibald Douglas of Tofts, to ane pension of L. 500, furth of the Bishoprick of Aberdeen, granted anno 1575 to Tofts, cum potestate transferendi; it was answered, That his assignation was null, because it was granted to him in anno 1618, whereof he never made intimation, obtained possession nor letters conform, but the cedent retained possession three years after the assignation, to the time of his decease; and therefore the assignation was simulate and null, proceeding from him qui dedit et retinuit.
