Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Robert Russel, Provost of Stirling,
v.
William Lamb

Date: 27 November 1673

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In an action of poinding the ground of the lands of Southbrae, at the instance of the provost, being infeft in an annualrent, to which he had right flowing from Anna and Margaret Wallaces, as heirs to their father, to whom the said annualrent was disponed by his elder brother;—it being alleged for William Lamb, That he had comprised the said lands from the said Anna and Margaret, aa charged to enter heir to their father and uncle, and all right that was in their person; which must carry the right of the said annualrent which was due out of the said lands; as was found in a case betwixt the Laird of Craigiehall and the Lord Renton:—

It was answered, That the comprising, being led for a debt due by the uncle, who was fiar of the lands, and who had disponed the right of the annualrent to the said Anna and Margaret's father, they could not be denuded thereof, unless they had been specially charged to enter heir to the said annualrent, as being a distinct several right from the lands: no more than, by a service and retour, they could have right to the said annualrent, as being infeft in the lands; which is contrary to our fundamental law as to conveyances of these several rights; having their distinct manner, both in their services, retours, and infeftments. And as to the practick, it did not meet the case; because the annualrent, as well as the lands, were deduced in the comprising; and all right that the debtor had: so that there was a great distinction betwixt an annualrenter who had acquired the rights of the lands, against whom the comprising was deduced, and this case, where the said daughters, annualrenters, had never right to the said lands, nor their father.

The Lords did not decide this point in jure, if the comprising the lands did carry the annualrent to which the apparent heirs were not specially charged to enter; in respect that they found the said William Lamb to have no right, by his comprising deduced at his instance, as heir to his father; whereas he had an elder brother then living, from whom Russel had comprised the right of the said lands. But it seems that a comprising, led against an apparent heir, both to an annualrenter and to the fiar of the land out of which the annualrent was due, ought not to carry the right of the annualrent, unless the right of the fee and annualrent did belong to one and the same person whom they did represent, who was sole debtor in the sums of money contained in the comprising: for, notwithstanding of that comprising, a creditor of the annualrenter, charging the same apparent heirs to enter specially to the annualrent, and thereupon comprising, the right thereof will be preferred to a prior compriser of the right of the lands only, and not the annualrent.

Page 368.