Scottish Court of Session Decisions

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

Mr Patrick Hume
v.
Brown

Date: 20 November 1672

Click here to view a pdf copy of this documet : PDF Copy

Mr Patrick Hume, as donatar, constitute by Rentoun his father, to the non-entry of the lands of Brownsbank, pursues a declarator of non-entry. It was alleged for Alexander Brown, Absolvitor; because the lands of Brownsbank were holden, of Rentoun or his authors, feu, by William Brown, who wadset the same to Thomas Brown; and, being resigned in his favours, Rentoun would not give him infeftment, but only of a ward-tenor. But Alexander Brown, having apprised both from William Brown, who had the right of reversion, and from Thomas Brown, the wadsetter, did charge Rentoun, the superior, to receive him feu, and offered a year's feu-duty; but Rentoun did unjustly suspend upon several grounds, viz. That he had right himself to the property, and that he ought to have a full year's rent of the land, being ward; so that the appriser having done diligence, and the superior being in the fault, he must be in the same condition as if the superior had entered him, which would stop the non-entry. It was answered, That the superior was not in the fault; for the wadsetter, being the only proprietor, and holding immediately of the superior, and the appriser having apprised both from him and from the other who had the reversion, he could only charge the superior to receive [him] in place of the wadsetter, who only was his vassal, the former vassal having no more but only the right of reversion; and, unless the wadset had been redeemed, and the appriser, in place of the old vassal, had been re-invested, he could not have made use of the feu-right granted to the old vassal, but only of the ward-right granted to the wadsetter; so that the superior was not in the fault in not receiving the appriser by a feu-right, upon payment of a year's feu-duty. And, albeit the charge was in the time of the usurpation, when wards had no effect as to their casualities, yet no superior was obliged to change the terms of their infeftments. The Lords found that the superior was not in the fault, and therefore repelled the defence.

Vol. II, Page 120.