Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. I.
In what cases the privilege competent.
Borthwick v. Skeen and Others
Date: 8 July 1665 Case No. No 12.
A minor fiar being bound to warrant a liferent to a liferentrix, the Lords, in a reduction of the liferentrix's fight, repelled the allegeance of minor non tenetur, because the privilege is purely personal, and when the minor is pursued himself, not when he only becomes liable in consequence; yet the Court declared that this should be without prejudice of the minor's right.
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In a reduction pursued at the instance of James Borthwick, apothecary in Edinburgh, against Janet Skeen, relict of —— Home, and Janet Home, their daughter, for reducing their infeftment of the lands of Birksneip, the pursuer declared he insisted primo loco against the said Janet Skeen, who had got a defence found relevant upon her liferent infeftment clad with seven years possession in a removing, and who in this reduction alleges, That she being only a liferentrix, and the heir being called, who is obliged to warrant her infeftment, what defence is competent to the heir is also competent to the liferentrix; but so it is, that if any were insisting against the heir, he would allege, that non tenetur placitare being minor. It was answered, That the liferentrix is major, and the defence non tenetur placitare, is only personal, and not transmissible to a major; and though the minor be obliged to warrant, hoc nihil est to the pursuer, who finding a person infeft in his lands, and in possession, may very well pursue for taking away that incumbrance, and she may pursue warrandice, as she will be served.
The Lords repelled the allegeance; and thereafter she alleging, That she bruiked by tolerance of the minor qui non tenetur, this was repelled also, in respect she had founded her defence upon a liferent infeftment, and, in respect thereof had excluded the pursuer's removing; likeas, her infeftment was produced.
Fol. Dic. v. 1. p. 589. Gilmour, No 157. p. 111.*** Newbyth reports this case:
1665. July 8.—James Borthwick, apothecary, being infeft in the lands of Birksnews, upon a right flowing from the Lord Borthwick, pursues a removing against Janet Skeen and her tenants, from the said lands, as also pursues a reduction of the said Janet Skeen, her liferent right of the said lands, whereof the reason was, that both the liferent and fee being derived from Alexander Hali burton, the said Alexander had no right in his own person from the Archbishop of St Andrew's, superior of the said lands; and therefore the said writs, as being granted a non habente potestatem, were null, and should be reduced. The pursuer having insisted in this removing against the liferentrix, it was alleged for her, She could not remove, because she and her husband, from whom she had right, had been some years in possession, which was sufficient to defend her in judicio possessorio; to which it was replied, That there was reduction raised of her liferent, upon the said reason, which he repeated; whereunto it was duplied, That her liferent right being granted to her by umquhile Major John Home, her deceased husband, with a clause of warrandice; as Janet Home, her daughter, was not obliged placitare, as to her right of fee, in respect she was minor, so no more was she obliged as to her liferent, in respect that if the same were evicted, she would have recourse against the minor; to which it was triplied, The allegeance ought to be repelled, because that the privilege that a minor non tenetur placitare was simply personal; and being oftentimes prejudicial to a third party's right and interest, ought not to be extended de persona ad personam. And albeit the minor was liable in warrandice of the liferent, yet that is not ground why the liferentrix ought not to dispute anent the said rights; otherwise where-ever a singular successor had a recourse of warrandice against a minor, he should not be obliged to dispute upon the merits of his rights, quod absurdum, and contrary to all law and reason.——The Lords repelled the allegeance founded upon minor non tenetur placitare, proponed for the liferentrix, without prejudice of the minor's rights, as accords.
Newbyth, MS. p. 33.*** This case is also reported by Stair:
1695. July 15.—James Borthwick, being infeft in the lands of Oversneip, pursues reduction and removing against Janet Skeen, the liferentrix. It was alleged, That the fiar being minor, non tenetur placitare super hæreditate paterna; and for the liferenter, That the minor was obliged to warrant her liferent-right, and her possession was the minor's possession; so that if her right were reduced, and she removed, the privilege of the minor were altogether overthrown. It was answered, That the privilege was personal, and stricti juris, and was to be extended to majors; and as for the warrandice, it was never sustained as a ground to exclude a reduction, because warrandice would be inferred against a minor, which is but a personal obligement, and not hæreditas.
The Lords repelled the allegeance for the liferenter; who alleged further, That her right being reduced, the fee was absolute in the person of the minor, who would not suffer the liferentrix to be removed, but she did possess by the minor's tolerance.
It was answered, That the pursuer's reduction behoved to accresce to him and his right, and not to the minor's right, that he behoved to enter to the liferenter's possession, which would not prejudge the minor; for if the liferenter died during the minor's minority, he might return to the possession in the same way as if the liferenter were in possession; but as for the tolerance, now the liferenter having entered by the liferent right, and it being reduced in favour of the pursuer, as the minor could not thereby attain possession, so neither can he give tolerance to defend the liferenter.
