Rights and powers of an apparent heir, as to removing tenants, uplifting rents, selling the predecessor's estate, &c. - - To whom rents unuplifted during apparency belong.
Oliphant and Auchterlony v. Tenants
Date: 19 February 1633 Case No. No 11.
The Lords refused to sustain action of mails and duties at the instance of an apparent heir not infeft, though the tenant pretended no right; but upon the pursuer offering to find caution to make the rents furthcoming, they sustained the pursuit.
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One Oliphant, and Auchterlony his tutor-testamentar for his interest, pursue the tenants of the lands of ———, to pay to the said minor, as apparent heir to his father, the mails and duties of his lands, wherein the Lords found, that seeing this pursuit was moved by the pursuer only as apparent heir, he not being infeft in the lands, nor yet retoured heir to his father, and his father's sasine produced, nor yet it being answered,. That these defenders had ever acknowledged the pursuer to be their master, by paying of mails and duties to him of before, therefore that they could not be convened in this pursuit by the apparent heir: And found this defence competent to the defenders, although they were only naked tenants, and had no right in their own persons to the saids lands. Thereafter, upon the 26th of February, the Lords sustained this pursuit at the instance of the apparent heir, he finding caution to relieve the defenders, who alleged no right in their persons for retention of the farms, and to make the same furthcoming to all parties having interest, which was done the rather, least the tenants should become non solvendo.
Clerk, Hay.
Fol. Dic. v. 1. p. 358. Durie, p. 675.*** Auchinleck reports the same case:
An apparent heir cannot pursue for the mails and duties of his father's lands till he be retoured.
Auchinleck, MS. p. 6.*** This case is also reported by Spottiswood:
In an action of mails and duties pursued by John Oliphant against his tenants, as heir apparent to his father; alleged, No process at the pursuer's instance as apparent heir, unless he were seised. Answered, It is sufficient against the tenants who pretend no right. This allegeance found relevant.
Next the pursuer offered to find caution to make the same farms furthcoming to all parties having interest, which should be granted against the tenants who may become non solvendo. This offer of caution was sustained.
