Found that a rental given to a man and his heirs, ought to last for the life of the first heir, and no longer.
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In an action for payment of duties of lands, the defender defending himself with a rental set by the Town of Wigton, to his father and his heirs heritably, ad perpetuam remanentiam,(for this was the tenor of the rental) and that he was heir to his father, and so it ought to defend him during his life-time; and the pursuer contending, that the rental ought not to defend him after the decease of the first receiver, albeit it bore that word of the rentaller’s heir; except that he might prove by authentic probation, that the custom of the Town of Wigton is so, that rentals so set are effectual to the receiver’s heirs for his life-time; and that that custom has been allowed to the heir so to bruik ;—the Lords sustained the exception, and found, that the rental set to a rentaller and his heirs, ought to maintain the first heir of the rentaller during his life-time; and that there was no necessity to allege or prove any such custom as was replied on; but sustained the exception without that allegeance; and found that they would observe this decision thereafter, when the like question occurs; but albeit it was so here found, yet the exception of the tenor of rentals may furnish cause of scruple; for if any heritor should receive a person and his heirs, rentallers to the setter personally, not proporting, that they are admitted to the setter and his heirs, it may appear co casu, that then the heirs of the rentallers should not bruik longer than that setter’s life; for albeit the rentallers heirs be mentioned, yet that may be constructed, that they should bruik, in case the rentaller’s self should die before the setter, so that these considerations, and the like, will depend much upon the tenor and conception of clauses in rentals.
Act Gilmor.Alt. Hepburn.Clerk, Gibson.
Fol. Dic.v. 2. p. 419. Durie, p. 629.***Spottiswood reports this case:
It being questionable how long a rental given to a man and his heirs should last, the Lords having decided it sometimes this way, sometimes that; in an action between Mr. Christie and A. Hannay, they found that it should last for the life-time of the first heir of him to whom the rental was given, and no longer, conform to the civil law above-written, which they declared they would keep and follow in all time thereafter, when the like question should occur.
Spottiswood, p. 354.
*** See 15th March, 1631, Earl of Galloway, No. 25. p. 7194. voce Irritancy.
