A superior being denounced rebel for not entering a vassal, and the next superior having resigned the superiority in the King's hands; was found, that the Director of the Chancery might issue precepts for infefting the vassal, to be holden of the King.
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In an action by one Stark against the Director of the Chancery and the L. of Airth, making mention that the pursuer, by contract betwixt him and the L. Airth, had taken the Laird of Airth obliged to infeft him in the lands of, which the Laird of Airth held of Sir James Cleland of Monkland, and that the pursuer had denounced the Laird of Airth rebel for not doing thereof; likeas Sir James Cleland had resigned his superiority in the King's hands, according to the universal order taken by the submitters concerning kirklands; and therefore, that the pursuer ought to have precepts out of the Chancery, for infefting of him to be holden of the King; this being referred to the Lords, if this action should be sustained, the Lords sustained the same, and found, That there was no necessity to summon Sir James Cleland to this pursuit; it being libelled in the summons that Sir James Cleland had resigned his superiority in the King's hands, which the Lords found should be proved; and being proved, his interest ceased, and so he needed not to be summoned; neither needed any further action to be pursued, before these precepts out of the Chancery were directed against the L. Airth, the pursuer's author, to obtain himself infeft; that thereafter the pursuer might be validly infeft, seeing the pursuer had upon the said contract denounced the L. Airth rebel, for not infefting of the pursuer; which the Lords found sufficient, and to comprehend that into it, viz. to infeft himself, that so the pursuer might be validly infeft, without the which the pursuer could not be validly secured; and so the action was sustained upon these two grounds, but any further, viz. upon the L. of Airth's being at the horn, for not infefting of the pursuer, to be holden of Sir James, and his resignation of the superiority; for if Sir James had, upon refusal of precepts out of the Chancery, disobeyed to have infefted his vassal, the King, as use is in such cases, would have infeft the vassal, in place of the immediate superior disobeying, quo casu the feu-duties and other casualties would appertain not the less to the immediate superior of the vassal, and not to the King, who but supplied the fault of the immediate superior; even so the resignation made by the L. Airth's immediate superior ought to produce the same effect.
Clerk, Gibson.
Fol. Dic. v. 1. p. 470. Durie, p. 549.*** Auchinleck reports this case:
By contract one is obliged to infeft another in lands annalzied by the said contract; the seller dies before the infeftment be expede; the buyer charges the apparent heir of the seller to enter heir to his father, to the effect he may infeft the buyer, conform to the contract, and for his disobedience denounces him at horn. Thereafter he charges the Director of the Chancery by letters, to give him out charter and precept of poinding of the said lands.——The Lords sustained the action.
