Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Earl of Eglintoun
v.
The Laird of Greenock

Date: 16 July 1672

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The Earl of Eglintoun insisted in the cause debated the second of July instant, against Greenock, for declaring the avail of the Earl of Mount-Alexander's marriage; who held the land, ward of Eglintoun; and gave a wadset-feu thereof to Greenock, with the Earl's consent; which the Lords found to exclude the Earl from burdening Greenock's interest of these lands with the marriage. The Earl now further alleged, That Greenock's right, being but a wadset, cannot have the benefit of the feus allowed by the old statute; and which, by the statute 1606, are only approven when the superior confirms or consents; because the said old statute mentions only proper feus, which are perpetual locations; and where there is a competent feu-duty reserved, which is always interpret to be at least the new retoured duty: But Greenock's right is not perpetual, but under reversion; and, albeit it hath a feu-duty of L. 40, yet it is discharged. It was answered, That, the old statute hath no distinction of feus, whether redeemable or not; and that there is no question but redeemable feus would have been valid before the Act of Parliament 1606; and there is here a competent feu-duy, which albeit discharged, yet it is with the superior's own consent. The Lords found this feu, though under reversion, valid to exclude the ward and marriage, in so far as concerned the wadsetter's right consented to: except to the feu-duty discharged, which they found a necessary consequent of the feu itself; and that the consent to the discharge thereof could only extend to the sub-vassal, but not as to the superior, during the ward, in respect that the old statute did only allow feus with a competent feu-duty: And found, That the superior might declare the avail of the marriage as a debt against Mount-Alexander; and that therewith he might burden the feu, as to Mount-Alexander's right, and might obtain the wadsetter to restrict, and might redeem or apprize the reversion.

Vol. II, Page 102.