Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. VII.
Inhibition of Teinds, how past from. - Requisition or Premonition. - Decree Arbitral. - Recognition. - Legal Exception. - Provision of Conquest.
Lenox v. M'Moran
Date: 20 February 1633 Case No. No 38.
A feu charter empowered the superior to poind for double the feu-duty, upon failure of payment. Found that this did not prevent him from reducing the feu in term of the act 1597, cap. 250.
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One Lenox pursuing M'Moran, who was minor, for reduction of a feu infeftment, granted to the defender's father, upon the act 1597, cap. 250, for not paying of the feu-duties many years bypast; and the defender alleging, That he was minor, et sic de jure non tenebatur placitare super hæreditate paterna, this exception was repelled, in respect he was convened for his father's fault, and also the minor's self was holden to answer, in respect of the act of Parliament, from which minors are not excepted. And it being further alleged, That in the feu-infeftment, called to be reduced, it was specially provided, and set down therein, “That if the party failed to pay the feu-duty at the term appointed, then it should be leisome to the giver of the feu, and his heirs, to poind the land for the double of the feu-duty;” by the which conventional condition agreed upon betwixt the parties, which they had convened upon as an express penalty, set down to supply the failzie of not payment of the feu-duty, the said pursuer could never have recourse to claim any other thing, which might ensue upon that failzie, neither by the act of Parliament, nor by any other ground, but only that which was agreed to come in place of the failzie, as said is, and therefore could never be heard to reduce this right; this allegeance was repelled also, for the Lords found, that that condition convened betwixt the parties did not derogate, but that the pursuer might seek the benefit of the act of Parliament, from the which he was not secluded by that clause of the infeftment, seeing the party might seek any of them as he pleased, specially also the act of Parliament being since the infeftment. See Minor non tenetur, &c.
Fol. Dic. v. 1. p. 433. Durie, p. 675.*** Auchinleck reports the same case:
1633. Feb. 19.—John Lenox of Kelly, superior of the lands of Kirk———, pursues the feuers to hear and see their feus reduced for not payment of their feu-duties, resting unpaid for the space of two years, conform to the act of Parliament, which feu-duties were resting unpaid for 40 years. It was alleged, 1mo, That the defenders were minors, and a minor non tenet placitare de hæreditate. To which it was answered, That this only admits an exception (nisi in dolo paterno). 2do, This rule has no place against the said act of Parliament, wherein minors are not excepted. The Lords repelled the allegeance upon minority. It was further alleged, That seeing there was an irritant clause contained in the defender's infeftment, whereby it was provided, that in case of not payment of the feu-duty, the superior should have liberty to poind for the duties, so the most that can be craved is the double of the feu-duty. To which it was replied, That the pursuer has it in his option, either to pursue upon the act of Parliament, or upon the clause contained in the feuer's charter, seeing the charter is prior to the act of Parliament. The Lords found that the pursuer may either use the benefit of the act of Parliament or clause.
