Legal Irritancy upon assigning or subsetting. - Rental Rights. - Whether Marriage be such an Assignation as to infer Irritancy?
La Maxwell v. Her Tenants
Date: 28 July 1630 Case No. No 28.
An assignation made by a rentaller to his children, was found not to be such a deed as to make the rental fill. In this case, the rentaller retained possession with his children.
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In a removing La. Maxwell contra Her Tenants, one of the defenders alleging, that he was rentalled by the pursuer, in the lands libelled, during his lifetime, and by virtue thereof in possession;—the pursuer replying, That the rental bore a clause and provision, “that if the rentaller disponed his lands to any other person, it should be null,” and that he had disponed it to his own bairns, who were in possession of the lands;—the defender duplying, That the disposition to any of his bairns made it not to fall, seeing that disposition could not be reputed, as if he had disponed his rental to a stranger, which behoved to be the only meaning and interpretation of that clause of the contract, specially seeing he and his bairns, to whom the disposition was made, remained in household, and dwelt together, and possest altogether;—The Lords found the exception and duply relevant; and found the disposition, made by the rentaller to his own bairns, not to be such a deed as to make the rental fall, specially seeing he retained the possession with his said bairns; whereas, if he had not been in possession, but only the bairns, to whom he disponed, the matter would have been the more disputable.
Act. ——et Douglas.Alt. ——.Clerk, Hay.
Fol. Dic. v. 1. p. 484. Durie, p. 536.*** Auchinleck reports this case:
The Lady Maxwell against the Tenants of——. It is excepted by some of the tenants, That they had rentals set to them by the pursuer. To which it was replied, That the said rentals were null, because they were granted with provision, that in case assignation or disposition were granted or made of them, without consent of the setter, the rentals should be null; and true it is, that sundry of the defenders had made assignation to their bairns, and put them in possession.—The Lords found, that such dispositions and assignations, made to mens' own bairns, could infer no nullity.
