Scottish Court of Session Decisions

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

Matthew Campbel
v.
Ronald M'Charty

Date: 23 July 1634

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Matthew Campbel having obtained decreet of removing against Ronald M'Charty; this M'Charty intents reduction upon a reason, bearing that the reducer's brother, to whom he was apparent heir, had received a charter of the lands libelled from umquhile —— Campbels, to whom the obtainer of the sentence was heir, or has behaved himself as heir; by virtue whereof the reducer, and his brother before him, have been in continual possession of the said lands since the date of the said charter, which is in anno 1597, and which contains absolute warrandice;—the Lords found this reason relevant to reduce the decreet; albeit the obtainer thereof alleged that the charter, without sasine taken thereon, could not be sustained as a right to maintain the reducer in the right and possession of the lands; for he contended that it was not obligatory, being but the beginning of an imperfected Act, which cannot be sustained while it be complete, specially where the completing thereof depends upon the parties' own will, who, never seeking sasine, nor doing diligence therefore as he ought, his own fault ought not to be profitable to him. Which allegeance was repelled, and the charter sustained, albeit wanting sasine; in respect the party, now defender in the reduction, was offered to be proven to be heir, or behaving him as heir to the granter of the charter; whereby he could not quarrel it, being that person who is holden to warrant and perfect the same; and it was not respected, where the defender alleged that it was the parties' own fault, who did no diligence to obtain sasine; for thereby the defender might seek non-entry against the land, and make his best advantage thereof; but it was sustained, being clad with possession, to exclude removing pursued by this party; and it was not found nudum pactum, but sustained as a contract which, would have defended against the contractor and his heirs.

Scot, Clerk.

Page 732.