Superior bound to enter the heir of his Vassal, but not till he has paid the by-gone Non-entry Duties.
Laird of Monktoun v. Lord Yester
Date: 15 February 1634 Case No. No. 20.
Where the representative of a vassal, who had sub-feued, charged the superior to infeft him, he was found obliged to do so, upon receipt of the duty due by the sub-vassal, and not the whole rent of the lands.
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The lands of ——— being disponed by the Lord Yester to umquhile Hay of Monktoun, to be holden of him, who thereafter setting them in feu to a sub-vassal, to be holden of Monktoun, for payment of a feu-duty, who is infeft, and thereafter in possession, by virtue of his feu; thereafter Monktoun dispones his right of these lands to another, from whom the same are apprised, or for his debt adjudged against the apparent heir, being charged to enter heir, and renouncing; the creditor, to whom the same is adjudged, and his assignee, charging the Lord Yester to enter him in Monktoun's place, who was his immediate vassal, and who had disponed his right, which was adjudged, as said is, which the superior was content to do, he getting a year's duty of the land; and the charger alleging, that he could give no more for his entry but one year's feu-duty, which was payable by the sub-vassal to the Lord Yester's immediate vassal, seeing by his adjudication he would get no more in time to come but only that feu-duty, and he ought to give no more than he would obtain himself; this allegeance was found relevant, and the Lords ordained the superior to enter this party in place of his vassal, he paying the feu-duty, which he would obtain from the sub-vassal, and found, he ought to pay no more for his entry; neither was it respected, what the superior alleged, that he was not in law holden to know that sub-feu, set by his vassal, being done without his consent, and so to his prejudice, especially whereas this charger had obtained also the sub-vassal's life-rent, he being at the horn year and day, whereby he bruiked the whole profit of the land, or might bruik it, and so had no prejudice to pay a year's profit of the land to the superior; which allegeance was repelled, seeing the casuality of the sub-vassal's life-rent could fall to none but the sub-vassal's immediate superior, and not to his superior's superior; likeas the principal vassal set the feu to the sub-vassal, at that time when he might do it by the laws of the realm, and at which time the superior's consent was not in law requisite thereto.
Act. Stuart.Alt. Nicolson.Clerk, Hay.
Fol. Dic. v. 2. p. 407. Durie, p. 705.
