Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XII.
Charter of Resignation. Right of Reversion in the Superior's Person not hurt by Confirmation; nor does it bar Reduction ex capite Inhibitionis.
Bishop of Glasgow v. Mauld
Date: 20 March 1635 Case No. No 74.
A superior granted to a vassal a right of lands, under reversion. The vassal disponed the lands, without mentioning the reversion. This disposition was confirmed by the superior. Found that the last disposition was still subject to the reversion.
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The Bishop of Glasgow, pursuing redemption of the lands of Guidlie, against Robert Mauld, which lands were annailzied to umquhile James Durham of Ardestie, by umquhile David Earl of Crawfurd, and to whom the said umquhile James granted back a reversion, in anno 1575, to which reversion the said Bishop of Glasgow is made assignee by progress, and the said umquhile James Durham acquirer of the said heritable right, and granter back of the reversion, dispones the said lands to umquhile Andrew Mauld, father to this defender, to be holden of the Earl Crawfurd, his superior; in the which disposition and infeftment, there is no mention of any reversion, but the same is made purely and simply, without reversion; likeas, the said Earl, to whom the alledged right of reversion was granted, by his confirmation, has confirmed to the said umquhile Andrew Mauld the said charter ad longum, without any provision, reversion, or reservation; in respect whereof, the defender alledged, that he ought to bruik the lands irredeemably, seeing this confirmation is done long before the right of this alledged reversion was established by the Earl of Crawfurd, in any of the pursuer's authors persons. And it being replied, That James Durham could give no more right to the defender's father than he had himself, so that his own right being subject to the reversion, the right made by him to another must be alike affected also therewith; and, as to the Earl's confirmation, that cannot derogate to the preceding reversion, which cannot be taken away, but by some direct and express deed, when it is so convened on betwixt parties treating specially for that end; and it cannot be extinguished by this indirect deed of a confirmation, quæ nihil novi juris tribuit; and it being duplied, That, albeit Durham could give no otherwise his right than he had it himself, yet he and the Earl might together give it, and transmit the same to another, and in a better condition than he had it, and which he has done, and the Earl has allowed; for, confirmatio ejus, qui dare potuit, est nova datio; and, if the said Durham had resigned the lands in the Earl's hands, and that the Earl had thereafter disponed the same, without mention of any reversion to the defender, or his father, eo casu they would have bruiked the lands irredeemably, even sicklike by this confirmation of an heritable right, not mentioning reversion; and, as if a vassal holding ward, had disponed the lands to another, to be holden of the superior blench, the superior confirming that blench holding, could never thereafter claim the casualty of any ward, in case any had thereafter fallen, even so in this case; for this is not as if the superior had confirmed an irredeemable right, granted by the vassal, to be holden of the vassal's self, quo casu the superior would never have been prejudged; but this being a confirmation of a right, granted in such a manner, to be holden of the superior, must be of the same force, as if originally the superior himself had granted it, in that same tenor; for thereby he has expressly allowed all contained in that charter confirmed, and the whole articles thereof, and has made no provision, nor reservation therein, and so it must have full force, as it bears, both against himself, who would have ever been excluded by his own deed, if he had pursued the like cause, and, by necessary consequence, must sicklike meet this pursuer, having right from him; this alledgeance and duply was repelled, and the reversion found to be entire, unprejudged by this confirmation; for the right confirmed was found to be affected with this reversion, even as his right was, who disponed it.
Clerk, Gibson.
Fol. Dic. v. 1. p. 438. Durie, p. 762.
