Divorce. - Failzie. - Redemption. - Extinction by Intromission. - Gift of Forfeiture.
M'Math v. L Ochiltree.
Date: 21 January 1624 Case No. No 15.
An heritable bond was granted for security of payment of a debt in case of failzie. The creditor raised an action of mails and duties. The Lords found that he behoved first to obtain declarator of the failzie
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James M'Math and some other merchants, having furnished to my Lord Ochiltree certain sums of money, which he bound him to pay to them at the terms contained in the bond, and for their security of payment, in case of failzie of payment, and in warrandice thereof, he gave them charter and sasine of the lands of Saltoun; upon the which charter and seisin, they having convened the tenants of the said lands for payment of their duties,—The Lords found that the tenants could not be convened for payment, by virtue of the foresaid charter and sasine, which was given in warrandice, as said is, until the time that the pursuers had obtained declarator, upon the failzie of payment, against the principal party their debtor; for it was not pertinent to these defenders to dispute, neither could they know if the pursuers were paid or not, or if there was a failzie, or if the party had made payment, and so had purged the failzie; for that dispute was only proper to the debtor, who contracted with the pursuers, and not to these defenders.
Act. Stuart.Alt. Neilson.Clerk, Hay.
Fol. Dic. v. 1. p. 229. Durie, p. 99.
