Legal Irritancy upon assigning or subsetting. - Rental Rights. - Whether Marriage be such an Assignation as to infer Irritancy?
L Craigie Wallace v. His Tenants
Date: 21 March 1623 Case No. No 23.
A rental found null in toto, the rentaller having assigned more than half of the lands, without the master's consent; but, if less than the half had been assigned, the irritancy would only have taken effect as to the part assigned.
A clause, allowing a rentaller to input and output tenants, does not entitle him to assign.
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In an action of removing, pursued by the L. Craigie Wallace, against his tenants, an exception being proponed by one of the defenders, founded upon his rental, set to him by the pursuer's father, during the excipient's lifetime; whereto it being replied for the pursuer, That that rental could not furnish any ground of defence, because, the defender had assigned and disponed his rental to another, which disposition made the right of the rental to become extinct, as well to the rentaller himself, as to him to whom the same was assigned and disponed: Duplied for the defender, That the rental was not personally set to the defender, but thereby also, by a special clause thereof, he had power to output and input tenants and subtenants in the lands under him; in respect of the which clause, he had power to dispone upon his rental to another, being of the like degree with himself, seeing that clause behoved to import the same, so that, by the disposition, the rental could not fall. The Lords found, that, notwithstanding of the clause, bearing power to input and output tenants and subtenants, under the rentaller, yet that he had no power, by that clause, to assign or dispone the rental; and found the disposition of a rental in toto, or of the most part of the land contained in a rental, made the whole rental to fall in toto; but, if the disposition was made of a less part than the half of the lands contained in that rental, such dispositions should not make the whole rental to fall, but only pro tanto, viz. for the part disponed, and that the rental should stand, and subsist for the rest of the lands, which were not disponed, where the disposition was not made of all, or the most part of the lands therein contained.
Act. Hope & Lawtie.Alt. Nicolson & Miller.Clerk, Gibson.
Fol. Dic. v. 1. p. 484. Durie, p. 60.
*** See Kerse and Haddington's reports of this case, No 34. p. 6432, voce Implied Discharge and Renunciation.
