Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Lady Rothemay
v.
Janet Ogilvie and George Abernethy

Date: 20 July 1633

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The Lady Rothemay, as infeft in the lands of —— in conjunct-fee, pursues Janet Ogilvie and George Abernethy her son, for the duty of the said lands divers years bypast; who alleging, that she bruiked by tolerance and right from her said son, who was apparent heir to Ogilvie his father, which father had a right of heritable infeftment of wadset of these lands from the, pursuer's husband's authors, before the right made to her umquhile husband; by virtue whereof her husband was in possession: and the lady replying that the defender, viz. the relict of the obtainer of the wadset, had taken tacks from the pursuer's husband, wherein she had obliged her to pay the duty now acclaimed; and albeit that tack was expired before the years now acclaimed, yet, seeing she bruiked per tacitam relocationem, she ought still to pay the duty which she has not only paid during all the years of the tack, but divers years after the expiring thereof; and before the years acclaimed she paid the same duty; and her son, who was apparent heir to his father in the right of the wadset: And it being duplied, that, by the express condition of the tack, it was provided, that, after the expiring thereof, none of the parties' rights should be prejudged; so that thereby the heir's right of wadset must convalesce; and the payment made by the apparent heir of the wadsetter, after the expiring of the tack, cannot astrict this defender the relict, who left the room whereof the apparent heir became in possession by right of his father's wadset; and who, if any possession she now has, it is as having tolerance of another son, the apparent heir to his father; that son being deceased who was in possession and is alleged to have paid a year's duty to the pursuer after the expiring of the tack; whose deed cannot now prejudge this apparent heir, who succeeds to his father's wadset, and not to his deceased brother who was never infeft; and consequently cannot prejudge the mother bruiking by her son's tolerance, after she had left the room; which interrupts tacit relocation; specially there being a more sovereign right standing in the person of her son thereby to bruik, which takes away all tacit relocation: and it being provided in that tack, that both parties should return, after the ish of the tack, to their several rights, as said is; by the which clause the wadset revives, and the pursuer can never convene them, as bruiking per tacitam relocationem. Notwithstanding whereof the exception and duply were repelled, and the defenders were found, as bruiking per tacitam relocationem, still debtors in payment of the said duty acclaimed; for the tacit relocation was not found interrupted by her son's intervening possession; seeing she had acquired the possession again, after her son's decease, who, while he lived, paid the same duty; and so she, entering thereby, became debtor of the same duty as possessor per tacitam relocationem; wherein she must be reputed to have continued, seeing she never renounced her possession which she had by the prior tack, as she ought to have done.

Act. ——. Alt. Nicolson and Baird. Hay, Clerk.

Page 687.