A minute disponing lands with parts and pertinents, found to dispone common pasturage in a muir at the time of the bargain, possessed along with the lands.
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William Borthwick having charged the Lord Borthwick for payment of a sum of money, he suspends, and alleges that William is debtor to him in an equivalent sum, for the price of the lands of Halheriot, sold by my Lord to the charger, conform to a minute produced. The charger answered, That the reason was not relevant, unless the suspender would extend and perfect the minute, which my Lord refuses, especially and particularly to subscribe a disposition of the lands, with common pasturage in Borthwick muir. The suspender answered, That he was most willing to extend the minute, but would not insert that clause, because the minute could not carry nor import the same, bearing only a disposition of the lands, with parts, pendicles, and pertinents thereof, which he was content should be inserted in the extended disposition, and it was only proper after the infeftment was perfected, that the charger should make use of it, so far as it could reach, which he was content should be reserved as accords. 2dly, If he were obliged to dispute the effect of it, it could not extend to pasturage in the muir of Borthwick, 1st, Because a special servitude of a pasturage in such a muir, requires an express infeftment, and cannot be carried under the name of pendicles, parts, or pertinents, albeit the muir were contiguous, and the common muir of a barony; but, 2dly, This muir lies discontiguous from the lands of Halheriot, and my Lord's lands lie betwixt, and do not belong to the whole barony, but to some of the tenants of it only. The charger answered, That this being a minute, behoved to be extended in ample form, expressing all rights, particularly that the right de jure could carry, and there was no reason to make him accept of lands with a plea; and de jure pendicles and pertinents do well extend to common pasturage, when the said pasturage is so possessed; and it cannot be controverted, but the heritors and possessors of Halheriot have been in undoubted possession of common pasturage in this muir, and that the rent payable therefor is upon consideration of the pasturage, without which, it could neither give the rent it pays, nor the price; so that when my Lord dispones the lands, with the pertinents, and at the time of the disposition, this pasturage is unquestionably possest as a pertinent of the land, the extended charter and disposition ought in all reason to comprehend it expressly; neither is there any difference whether the pasturage be of a muir contiguous, or belonging to the whole barony, seeing it cannot be controverted, but it was possest as pertinent of this room the time of the bargain; and to clear that it was possest, the charger produced a wadset granted by the Lord Borthwick to himself of the same room, bearing expressly pasturage in the common muir of Borthwick. The suspender answered, That the wadset made against the charger, in respect this clause being express in the wadset, he had not put it in the minute, which as jus nobilius absorbed the wadset, and cannot be looked upon as a discharge of the reversion only, because my Lord was superior by the wadset, and by the minute he is to resign, likeas in the minute there is a disposition of the teinds, which is not in the wadset.
The Lords found that the minute ought to be extended, bearing expressly the common pasturage in the muir of Borthwick, in respect the same was a pertinent of the lands, sold the time of the bargain, and was not excepted.
