Pactions, Declarations, &c. by Back-bond or otherwise, qualifying real Rights.
Shaw v. Kinross
Date: 10 March 1629 Case No. No 30.
A disponee to an infeftment of annualrent granted a back-bond to the disponer, retrocessing the liferent of it. There-after he infeft himself in the annualrent right, upon the procuratory of resignation in the disposition. A singular successor was found not obliged to implement the back-bond.
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One being infeft in an annualrent out of some lands, who disponing that annualrent to another; after which disposition (which contained a procuratory of resignation therein), the acquirer of the disposition, before he was infeft conform thereto, by the superior of the annualrent, who was heritor of the land out of which it was disponed, gives a bond to the disponer, reponing her to her liferent thereof; after which bond, he immediately uses the procuratory of resignation, and was infeft by the superior in the said annualrent, the disponer nevertheless retains the possession; after which, the acquirer of the infeftment, upon the said resignation, resigns the said infeftment, and right of annualrent, in the hands of the heir of the superior and heritor of the lands, who, notwithstanding thereof, is still decerned to pay the annualrent to the said first resignant, conform to the foresaid back-bond made to her; thereafter the right of the land being comprised from the said heritor, and it being questioned, if the land was affected with the burden of that annualrent, and that really the compriser was holden to pay the same as the author was, conform to the foresaid bond; it was found, that the compriser might bruik that land without that burden, which the singular successor was not holden to pay, albeit his debtor, from whom he comprised the land, might be personally, and his heirs subject therein; yet seeing the real right was resigned in the superior's hands, no bond given by the resigner, or acknowledged thereafter by the superior, would affect the land against a singular successor; and, therefore, the person first heritor of the annualrent, by the right of the said back-bond, with continual retention of possession conform thereto, was not found to have any right against the land, or against the singular successor, but only against the heirs of the makers of the bond, and others whom she might personally convene.
Act. Rollock.Alt. Burnet.Clerk, Gibson.
Fol. Dic. v. 2. p. 64. Durie, p. 435.
