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A bond conveying the crop of the ground until a debt be paid, not good against a singular successor.
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In an action of removing pursued by Mitchelson against Law, the Lords found, a bond made by the pursuer's author, before any right acquired by the pursuer from him to the lands libelled, by the which bond the said author, for sums owing by him to the defender, and which the defender had paid as cautioner for him, had disponed the crop growing upon the ground, the year of that disposition, and also the farms of the lands, in all time and years to come, ay and while he were paid again of the sums wherein he was obliged for him, and conform thereto had put the defender in possession of the corns disponed, then growing upon the ground that crop; not to be a sufficient right to defend against the removing pursued against the defender; albeit it was alleged, that the defender, since the bond, was continually in real possession of the lands, by the space of divers years; and that he was not yet satisfied of the sums addebted to him; because they found, that albeit the bond had contained an express disposition of the lands to have been bruiked ay and while the defender had been paid, (which it bore not, bearing only a disposition of the farms) it could not have defended against the removing, which was pursued by a singular successor, who could not be prejudged in his right by the said bond; but that the same would only furnish action against the giver and maker thereof personally.
Clerk,Scot.
Durie, p. 134.*** Haddington reports this case:
Ane being denounced rebel, his liferent being obtained and declared, a party who had possession of the rebel's land, by virtue of a bond made by the rebel to him to possess the land while he were paid by the profits thereof, of ane particular debt, that bond and possession conform thereto will not defend the possession in a removing pursued by the donatar.
Ane bond given to the Thesaurer by the donatar, that the debt owing to him being paid by the rebel's lands or goods, he still use the gift by the Thesaurer's advice, will not stay the donatar's presentation; but the Lords will reserve action to either party to prove the debt paid, and to make use of the bond given to the Thesaurer as accords of law.
