Pactions, Declarations, &c. by Back-bond or otherwise, qualifying real Rights.
Earl of Southesk v. Marquis of Huntly
Date: 31 July 1666 Case No. No 36.
A back-bond of an appriser, before he was infeft, renouncing all benefit of his apprising, and discharging the same, in so far as prejudicial to a third party's right, was found effectual against a singular successor, though never registered.
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Earl of Southesk's cause, mentioned 23d July, No 40. p. 4712. voce Forfeiture, was this day advised, as to another defence, viz. that my Lord Argyle had right to Beaton's apprising of the estate of Huntly, which was long anterior to the pursuer's infeftment, and whereunto Huntly hath right, as donatar to Argyle's forfeiture. This contract of the cumulative wadset being granted in anno 1656, it was answered, That Beaton, before he was infeft upon that apprising, had renounced all benefit of the apprising, and discharged the same, in so far as it might be prejudicial to the pursuer's right, which is presently instructed. It was answered, That renunciation was but personal, and was never registrated, and so could not be effectual against any singular successor; much less against the King's donatar, having a real right. It was answered, That apprisings are not of the nature of other real rights, but they may be taken away by intromission, payment, or discharge of the appriser, and there needs no resignation nor infeftment. It was answered, That albeit, by the act of Parliament 1621, apprisings may be taken away by intromission, and that it hath been extended to payment, yet never to such personal back-bonds.
The Lords found the apprising to be taken away by Beaton's back-bond renouncing the same, in so far as concerns this pursuer, and found the same relevant against the donatar. See Registration.
