Subject_1 JUS SUPERVENIENS AUCTORI ACCRESCIT SUCCESSORI. Subject_2 SECT. I.
Where the author is liable in Warrandice.
Elizabeth Douglas v. Laird of Wedderburn
Date: 19 July 1664 Case No. No 5.
The maxim, Jus superveniens auctori accrescit successori, does not hold where there does not appear an onerous cause of the successor's right.
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Elizabeth Douglas, as heir to her goodsire, and Sir Robert Sinclair of Lochermachus, her husband, pursue a spuilzie of teinds against the Laird of Wedderburn, who alleged absolvitor, because he had tack of the teinds of the said lands from the Earl of Home, and by virtue thereof, was bona fide possessor, and behoved to bruik till his tack were reduced; 2do, That he had right from the Earl of Home by the said tack; which Earl of Home, albeit his right which he had the time of the granting of the said tack was reduced, yet he has since presently in his person the right of the teinds of the lands from John Stewart of Coldingham, which being jus superveniens auctori, must accresce to the defender, and defend him in this pursuit. The pursuer answered to the first defence, that the defender's bona fides was interrupted long before the years libelled. 2do, Albeit there had been none, yet this author, the Earl of Home's right being reduced in Parliament, his bona fides being sine omni titulo, is not sufficient; neither needed the tacksman to be called to the reduction, but his right fell in consequentiam with the granter of the tack's right. The second defence, it was answered, That the general maxim of jus superveniens has its own fallacies; for the reason of the maxim is, that when any thing is disponed for a cause onerous, equivalent to the value thereof, it is always understood, that the disponer dispones not only what right he hath already, but whatever right he shall happen to acquire, seeing he gets the full value; and therefore, fictione juris, whatever right thereafter comes in his person, though it be after the acquirer's right, yet it is holden as conveyed by the acquirer's right, without any new deed or solemnity; but where that reason is wanting, it holds not as first, if it appear that the cause of the disposition is not at the full value; then it is presumed, that the disponer only disponed such right as he presently had; or if the disponer deduce a particular right, as an apprising, or tacks, &c., and either dispones, but that right per expressum, or at least dispones not for all right he hath or may have, or does not dispone with absolute warrandice; in these cases, the author's right supervening, accresces not to the acquirer; but himself may make use thereof against the acquirer; much more any other having right from him. 2do, The maxim holds not, if the author's right be reduced before he acquire the new right, in which case, the first right being extinct, nothing can accresce thereto, but the author may acquire any other new right, and make use thereof. 3tio, The maxim hath no place, if the author do not acquire a new right to the land, which could be the foundation and ground of the tack granted; as if he acquired but the right of an annualrent, which could be no ground of the defender's tack, much more, if he acquire a right to the mails and duties of the lands, either upon sentence to make arrested goods forthcoming, or an assignation or disposition of the mails and duties made to the author, for satisfying of a debt to him by the disponer. This would be no right to the land that could accresce to validate a tack. The defender answered, 1mo, That his first defence was yet relevant; because, albeit his author's right were reduced, he not being called, his right would be a sufficient colourable title to give him the benefit of a possessory judgment, until his bona fides were interrupted by process, because his subaltern right is not extinct, till either by way of action or exception, it be declared extinct, as falling in consequence with his author's right reduced, seeing there is no mention thereof in the decreet of reduction. 2do, Albeit diligence had been used, yet if the user thereof insisted not, but suffered the defender to possess bona fide seven years thereafter, it revives that benefit of a new possessory judgment.
The Lords, as to this point, found that the interruption of the bona fides by process, did still take the same away, unless it were prescribed; but found, that before any process, the defence should be relevant; and, therefore, sustained only process for the year since the citation.
As to the other defence in jure, the defender answered, That his defence stands yet relevant, notwithstanding all the fallacies alleged, which are without warrant in law, and without example with us, where this maxim hath ever been held unquestionable, that jus auctoris accrescit successori, unless the successor's right be expressly limited to a particular right, or to any right the author then had; but the defender need not dispute the equivalence of the cause, unless such express limitation were added, there is no ground to presume an exception upon the personal obligement of warrandice from fact and deed, which oftentimes is put in contracts fully onerous; but on the contrary, there is a several defence upon that very clause, that the Earl of Home, whatever right he should acquire, yet if he should make use of it against this defender, he comes against his own warrandice, whereby he is obliged, that he has done, nor shall do, no deed prejudicial to the defender's tack; neither is there any ground of exception; albeit the author's right was reduced before the new right acquired from that ground, that the new cannot accresce unto the old right, being extinct; because the maxim bears, that it accresces successori, non jure successoris; so that albeit the new right do not validate the old right, yet the new right becomes the defender's right eo momento that it became the author's right per fictionem juris, without deed or diligence, and cannot be taken away by any subsequent deed of that author, more than if before such a deed he had particularly established his successors therein; because the fiction of the law is equivalent to any such establishment; neither is there ground of exception, that the author's right supervening, is but an annualrent, which cannot validate a tack; because, if the author were making use of that annualrent to poind the ground, the defender, upon his tack and warrandice, would exclude him, because he could not come against his own deed and obligement; yea, albeit it were but a right to the mails and duties, quocunque modo. The Lords having considered the Earl of Home's now supervening right, and that it was but the right of an annualrent of L. 300 Sterling, with a clause, that in case of failure of payment, he might uplift the hail mails and duties till he was paid, and that the defender's tack included only personal warrandice; they repelled the defence, and found, that such right could not accresce to the defender, to validate his tack; wherein some of the Lords had respect to that point that the right was reduced before this new right; but others, as it seems, on better grounds, laid no weight on that, if the clause onerous had been the full value, and equivalent, or if the tack had borne, for all right that I have, or shall acquire, which would accresce to the successor as oft as ever it was acquired, though all the prior rights had been reduced; but in this case, the author not acquiring a new right to the land, but only to the mails and duties, which in effect is but personal, it could not accresce to the defender, more than if the author had been factor to a third party by the new right; and albeit the clauses of personal warrandice might have personally excluded the Earl of Home himself, yet seeing that right could accresce to the defender, the Earl of Home having renounced, or assigned it to a third party; the personal objection against the Earl of Home upon the personal clause of warrandice ceases; neither did the pursuer insist upon the Earl of Home's right, but his own.
