Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. III.
What Rights go to Assignees.
Murray v. Myles
Date: 3 March 1630 Case No. No 51.
An assignee found to have right to proceed in a declarator of redemption, though the cedent died during the dependence of the declarator.
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One Myles in Dundee being infeft by Coustoun in a tenement in Dundee, under reversion personally to himself allenarly in his own lifetime of 10 shillings; shortly thereafter Coustoun useth an order of redemption against Myles, and intents declarator thereon in his own lifetime, and constitutes Robert Murray assignee to the order and summons; and thereafter, before declarator, he dies; whereupon the assignee, after transferring in him as assignee, pursues declarator; and the defender alleging, that the reversion, being personal, was extinct; the Lords repelled the allegeance, and sustained the declarator pursued by the assignee; for the Lords found, that albeit the reversion was only personal, yet seeing he, to whom it was granted, had used the order before his decease, and had intented summons of declarator; his dying before the sentence, after the order, made not the order to cease, nor the reversion to be extinct, but that it might be prosecuted lawfully by his assignee, or by his heir, if he had not made an assignee; seeing, by the order, he had declared his will, and thereby had redeemed; and the sentence was only a declarator, finding that the order used by himself was good.
Act. Russel.Alt. —.Clerk, Gibson.
Fol. Dic. v. 2. p. 75. Durie, p. 498.*** Spottiswood reports this case:
1630. February.—Thomas Myles being infeft in two tenements in Dundee by John Coustoun, under reversion, upon payment of 10 shillings, by John, in his own lifetime allenarly; within two or three months after the disposition, John useth an order of redemption, and intenteth summons of declarator. To which order, and all that followed thereupon, he assigned Robert Murray, one of his creditors, who sought the same to be transferred in his person. Alleged by Thomas, The reversion being personal to John alone, who was deceased before declarator of redemption, the order used by him expired by his decease.—The Lords found, that John having used an order in his own time, whereby he declared his mind to redeem, he might lawfully assign the same, and his assignee had good interest to seek a declarator upon the said order, as the cedent might have done in his time.
