Pactions, Declarations, &c. by Back-bond or otherwise, qualifying real Rights.
John Brown v. Robert Sibbald
Date: 12 February 1669 Case No. No 38.
A back-bond under a superior's hand declared, that the vassal should have liberty to renounce his feu-right when he pleased. This found effectual against a singular successor in the superiority, it being of the same date with the feu-contract, and relating to a matter intrinsic in the nature of the feu.
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John Brown having taken a feu of some acres of land, at a great rent in victual and money, pursues Robert Sibbald (now his superior) to hear and see it found and declared, that he might renounce and be free of the feu-duty. The defender alleged absolvitor, because this feu was by a mutual contract, by which the vassal had bound him and his heirs to pay the feu-duty yearly, and which obligation he could not loose at his pleasure; for albeit feus which are proper and gratuitously given without any obligement on the vassal's part, but given by a charter, or disposition, as being presumed to be in favorem of the vassal, he might renounce the same, nam cuivis licet favori pro se introducto renunciare; but here the vassal being expressly obliged for the feu-duty, cannot take off his own obligation, this case being like unto that of a tack, which being by mutual contract, cannot be renounced, though by a tack only granted and subscribed by the setter it may. The pursuer answered, That he opponed the common opinion of all feudists, de feudo refutando, wherein there is no exception, whether the feudal contract be subscribed by both parties; for every contract must necessarily import the consent of both parties, and the acceptance of a vassal to a feu by way of disposition is all one with his express obligation in a mutual contract. 2do, Though such a contract could not be renounced, yet this pursuer may renounce, because by a back-bond by the superior, who granted the feu under his hand, he has liberty to renounce when he pleases. The defender anwsered, That this back-bond not being in corpore juris, nor any part of the investiture, it was personal against that superior who granted the same, but not against the defender, who is a singular successor. It was answered, That the mutual contract not being de natura feudi, but at most importing an obligement not to renounce the feu, any personal deed before this superior's right, under the hand of his author, is relevant against him, as well as his author.
The Lords found the allegeances upon the back-bond relevant against the superior, though singular successor, it being granted of the same date with the feudal contract, and relating to a matter extrinsic to the nature of the feu; and so suffered the pursuer to renounce the same.
Fol. Dic. v. 2. p. 65. Stair, v. 1. p. 604.*** Gosford reports this case:
In a declarator pursued at Sibbald's instance against Brown, who had acquired the right of superiority of some acres of land which were holden feu, to hear and see it found and declared, that he being willing to resign the right of the said lands, ought to be free of the feu-duty in all time coming; the Lords sustained the declarator, in respect that the lands were ab initio given in feu for the full duty thereof, and that the feu-duty being 20 bolls of bear, and converted to 10 merks the boll, the vassal had a liberty when he pleased to pass from the conversion; notwithstanding it was alleged that refutatio emphyteusis could not be sustained in law, it being perpetua locatio et non feudum.
