Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Mershall
v.
L Drumkilbo.

Date: 12 March 1629

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One provided to a chaplainry in the College-kirk of Dunkell, and having thereon obtained letters conform, and charged for an annual-rent of ten pounds out of some lands, as due to the said chaplainry, and to the last chaplain, by whose decease the charger was provided,—having obtained decreet before the commissaries of Dunkell, against the heritors of the same lands, for payment of the said annual-rent for divers years, as addebted to him, and he having thereupon poinded the tenants, and received payment;—thir charges being suspended by the heritor, it was found that the decreet foresaid, obtained before the commissary of Dunkell, and the poinding conform thereto, by the said late chaplain, could not be sustained as sufficient grounds to astrict the heritor to burden his lands with the servitude of this annual-rent; except there were either a mortification produced, to show where this annual-rent was mortified by the heritor, to that chaplainry, or else that the chaplain had been in possession thereof, either before the reformation of the religion, divers years, or thirty years since; and no otherwise. And they respected not the said decreet and three years' possession therein contained, and poinding therefore.

Act. Fletcher. Alt. Nicolson. Hay, Clerk.

Vid. 17th March 1629, Yeaman against Stuart.

Page 436.