Conjunct fee excludes non-entry. - Non-entry excluded where the lands have been full thirty six-years.
Douglas and E Angus v. E Lauderdale, and L. Ley.
Date: 19 March 1629 Case No. No 48.
Though it is a good defence against all preceding non-entries, that the lands have been full for the space of 40 years, yet this was repelled as jus tertii, when proponed by a party who had no right to the infeftment, by which the lands were alleged to be full.
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A declarator of non-entry of lands being sought, and one of the defenders compearing, and alleging that Lauderdale was infeft in these lands, and that he and his author immediately before him were infeft therein, by rights and infeftments these 40 years by-past, whereby the land was full that space, and which by the practique of the kingdom purged all non-entry; this exception was repelled, being proponed by the defender, who alleged no right to the lands flowing from the Earl of Lauderdale, by whose right the lands were alleged to be full; and so it was jus tertii, and not competent to the proponer; whereas if he either had right from the Lo. Lauderdale, or that the Lo. Lauderdale's self had proponed it, the same would have been found relevant; for a defender, excepting upon his own right, or his author's, that the lands was full in their person by the space of 40 years, it is enough to purge all preceding non-entry; but the Lo. Lauderdale not being compearing (being a party called) to propone this, as said is, it was repelled ut supra, as not competent to the proponer; for in effect the non-entry was pursued to the behoof of the Lo. Lauderdale, to eschew a pursuit of reduction intented against his right to these lands, by the same party proponer of this exception, which was intented by him, as heir to that person, by whose decease the non-entry now acclaimed was ever sought sinsyne; neither was it respected, where it was alleged that the lands being full, eo casu there could not be a non-entry; far less where their two rights are contrary and unaccountable; and so they might be proponed by any party called, being a defence which extinguisheth that right in toto; and if that right whereby the lands were full, were called in question, the non-entry ought to sleep while the event of that process; for if the party infeft prevailed, he was in surety, and there needed no other right of non-entry to secure the same; and if it should be elided by any better right, then the non-entry might be sought; but so long as that right stood, all non-entry was thereby excluded, which was repelled ut supra.
Act. Stuart et Aiton.Alt. Nicolson et Mowat.Clerk, Hay.
Fol. Dic. v. 2. p. 7. Durie, p. 439.*** Spottiswood reports this case:
1629. March 20.—Francis Douglas brother to the Earl of Angus having obtained a gift of non-entry of the barony of Braidwood, by the death of David Stuart of Craigiehall pursued general declarator of the said non-entry. Alleged for the Laird of Lee, assignee constituted by James Stuart to his right of the said lands, that the non-entry could not be declared, because the said lands were full, in so far as my Lord Lauderdale, and his father before him, stand infeft in the said barony holding of the King these 40, or at least 30 years by-gone. Replied, The excipient had no interest to propone that allegeance, being jus tertii; likeas his cedent obtained himself served heir to the said umquhile David, alleging him to have died last vest and seised in these lands, whereby he acknowledged the lands to be in non-entry since David's decease, and so cannot propone an allegeance upon the Earl of Lauderdale's infeftment. The Lords repelled the exception as not competent to the defender.
Spottiswood, (Non-entry) p. 221.*** This case is also reported by Auchinleck:
1629. March 19.—A party served general heir to one of his predecessors, is pursued by a donatar to hear and see the lands whereunto he is declared heir to be in non-entry since the decease of his predecessor, to whom he is served general heir. He alleged, That the lands are not to be decerned to be in non-entry, because they are full by another person who stands infeft, and he and his predecessors have stood infeft by the space of 40 years. It is answered, ought to be repelled in respect the present infeftment alleged is jus tertii, and cannot purge the non-entry of the lands, whereunto he is apparent heir, since the decease of his predecessors, by whose right he intends to reduce the said infeftment, whereby he alleges the lands to be full. The Lords repelled the allegeance, as not competent to the defender to propone to defend upon another man's right.
The like was decided by interlocutor in the declarator pursued by Sir Mungo Murray, master of Stormont, donatar to the non-entry of Athole, against the pretended Heritor of Athol, 25th June 1629, infra.
