In an excambion of lands, though regress upon eviction was stipulated to the granter only, and his heirs, yet the lands being evicted from a singular successor, he was found to have regress against the excambed lands.
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The Laird of Wards's predecessor having received a charter, under the Great Seal, from King James the Fifth, of the lands of Wards, which charter proported, that the same were granted in excambion of the lands of Balcomie, pertaining heritably of before, and then to the Laird of Wards, and which were then resigned by Wards in his Majesty's hands for the saids other lands therein designed, in the which charter the King had granted expressly to the Laird of Wards a regress, and his heirs (not mentioning to his assignees and successors) in and to the lands of Balcomie, in case of eviction of the lands of Wards, disponed by the King to him, and that notwithstanding of any disposition to be made to any person thereafter of the lands of Balcomie; and the lands of Wards being evicted from the Laird of Wards by the Earl of Marr, upon that eviction, Wards seeking again decreet against the Laird of Balcomie upon the said charter of excambion, who was heritable proprietor of the saids lands by disposition made to his predecessors thereof by Erskine of Pittodrie, who, after the excambion, had obtained the right of the saids lands from the King. It was found, that the pursuer had good right to pursue this action, and to claim the benefit of the excambion and regress, albeit he was only a singular successor in the lands of Wards to him who excambed, and albeit he was not heir to him, although the provision of the regress, contained in the charter of excambion, was introduced only in favours of the Laird of Wards and his heirs, and which clause was found to extend to his successors in that right; also it was found, that the pursuer needed not to cite to this action the Laird of Balcomies’ author of his right, who acquired the right from the King by the public infeftment, the King's Majesty, and his Officers representing the King, with whom he excambed, and the Laird of Balcomie who was heritable proprietor by public infeftment, and possessor of the lands, being summoned, which was found enough in a process of this nature; also it was found, that the pursuer needed not to show where any of his predecessors to him, or himself, who is alleged to have excambed with the King, was infeft in the land before the excambion, as the defender alleged, ought to be qualified before the pursuit could be sustained; which was repelled, and the charter proporting the same was found sufficient to qualify the same, albeit the party alleged, that such narrations ought not to be respected as true, except the same could be made good otherways, specially against the excipient, who, or his author, was infeft in the saids lands originally by the King's Majesty, in whose person the right to all the lands in the kingdom is presupponed to consist plenarie, without relation to any excambion; notwithstanding whereof this charter so proporting was sustained, without necessity to show any other right preceding, seeing it might be presumed, that all the excamber's rights were delivered to the King's Officers, or, to such others, who thereafter acquired right from the King at the time of the excambion, especially after so long time since the excambion, ubi præsumitur, omnia bona fide fuisse gesta, and it was not probable that the King's Officers would have prevaricated, and walked so unfaithfully as to have ascribed the cause of the infeftment to an excambion, if it had not been so, where there was no necessity so to do, seeing the King might have otherways disponed of the lands at his own pleasure.
Act. Nicolson.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 258. Durie, p. 461.
