Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

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Date: 24 July 1632

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If a party comprises his debtor's lands, and neither obtains himself [entered] by the superior, nor charges the superior to infeft him upon his comprising, but by consent of the heritor, the compriser obtained possession of the comprised lands; after this, the heritor from whom the land was comprised is denounced to the horn, and lies year and day thereat, whereby his liferent falls in the superior's hands, when the donatar pursues declarator of his liferent. The compriser compears, and alleges, That he comprised the lands for a just debt; and, by virtue thereof, came in possession before the heritor his rebellion, whereby the heritor was denuded of the property before the rebellion. It was replied, that a comprising without infeftment or a charge given to the superior to infeft upon the comprising, cannot prejudge a superior of his casuality; for a simple comprising cannot denude a superior of a superiority, without some deed be done by himself for that effect; but the rebel remains the superior's vassal aye and while some entered to his place. The Lords repelled the exception, in respect of the reply.

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