Modification of single avail is to be made of the whole estate, real and personal, whether it hold of the superior or of others; and the whole debts, real and personal, whether confirmed by that superior or not, are to be deducted.
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Lewis Sommerville, donatar to the marriage of William Gordon, pursuing for declarator of the single avail of his marriage, according to the rental of the lands given in by him, and the defender desiring defalcation, in respect of the burdens on the lands, and other personal debts owing by him, whereon he was ready to condescend; the pursuer answering, That no respect ought to be had to any of his burdens, because the superior, who disponed these lands to his predecessors, gave them free of burdens; so that his casualties ought to be respected, according to the estate of the lands wherein they were, when the superior conferred the same, and not according to the burdens, which flowed from the vassal's deed; specially no respect could be had to the personal debts contracted by the defender or his predecessors, nor to real burdens not acknowledged or confirmed by the superior, nor to no other burdens whatsoever. This allegeance was sustained, notwithstanding of the answer; for the Lords found, that no sum could be modified for the defender's marriage, but with respect to defalcations of his rent and estate of the burdens, under which the defender lay, whether the same were real or personal, or whether the real were confirmed by the superior or not; for, if they were not confirmed, the superior had his other casualties thereby; but, in this pursuit for the marriage, which was personal, and respected the person of the vassal, and not real, for the paying of the profits of the land to the superior, the Lords found, that consideration ought to be had of all the vassal's true debts, either personal or real, and that, according to his free estate, a modification might be decerned for the marriage, and which modification would be made, not only according to the avail of these lands, which he held of that superior, but according to his whole estate of lands, albeit holden of other superiors, if he had any, and also according to the sums, and other moveables, which he had beside his lands; so that, as all came under consideration in the valuation of his estate, to make up the modification, so all should, in like manner, come under consideration, which might justly defalk and lessen the quantity thereof.
Act. Nicolson.Alt. Aiton.Clerk, Gibson.
Fol. Dic. v. 1. p. 570. Durie, p. 520.
