Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. II.
Whether a precept of clare constat, granted by a Superior, implies a discharge of Casualities.
Andrew Gray v. Howison and Gray
Date: 24 June 1668 Case No. No 9.
A precept of clare constat, granted after recognition, was found to imply the superior's passing from the recognition.
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Andrew Gray being infeft as heir to his grandsire, in certain lands of the barony of Foulis, held blench of the house of Gray, pursues a reduction of a late infeftment in anno 1655, granted to Walter Watson, as long posterior to his right. Compearance is made for William Gray of Haystoun, as being infeft by the Lord Gray, and Sir George Kinnaird, who was donatar to the recognition of the estate of Gray, by the alienation of this Lord's father; which recognition hath been declared by the Lords; and alleged, that he hath the only right; because, by the recognition, the old rights of the house of Gray being void, the pursuer's subaltern right fell in consequence therewith. The pursuer answered, That before the defender's right, he had obtained a precept of clare constat, acknowledging his old right, whereupon he was infeft. It was answered, That the precept doth bear expressly to be in obedience of precepts out of the chancellary upon the pursuer's retour, and so being a necessary act, and not voluntary, it could be no acknowledgement or ratification of the pursuer's right.
The Lords having considered the precept, that albeit it mentioned the retour in obedience to the precept, yet it bore also, et quoniam mihi clare constat. &c. in the common strain of a precept of clare constat, acknowledging the pursuer's predecessor's right and his own,
They found that it did exclude the donatar, and all having right from him thereafter, and after the sasine past thereon.
Fol. Dic. v. 1. p. 431. Stair, v. 1. p. 542.* * * Gosford reports the same case.
The Lord Gray did dispone the lands of Balbunnoth to one William Gray, to be held blench, which he himself held ward of the King; whereupon the said lands were recognosced to be in the King's hands, and found to belong to Sir George Kinnaird, as donatar, who thereupon did infeft Andrew Gray as nearest heir to the said William. Thereafter, the said donatar did dispone the said lands to William Hay of Haystoun, who being infeft, did enter to the possession by uplifting the mails and duties; there being a reduction raised of this infeftment at the said Andrew's instance, as being a non habente potestatem, the donatar being denuded in the pursuer's favours; and it being answered, that any infeftment granted by the donatar was only a precept upon a retour and requisition, and so could not prejudge him of the benefit of recognition; the reason was sustained notwithstanding of the answer, because the precept did not only make mention of the retour and recognition, but likewise did bear et quia per authentica documenta nobis clare constat, &c. and so was a clear precept of clare constat. The donatar could not thereafter crave the benefit of recognition, nor dispone the lands in prejudice of that infeftment.
