Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.
Date: Thomas Anderson
v.
Sir George Preston of Valiefield
10 July 1674 Click here to view a pdf copy of this documet : PDF Copy
Thomas Anderson, as having right to an annualrent out of the lands of Overtoun; whereupon he obtained a decreet of poinding of the ground; which being
suspended; and reduction raised at the instance of Sir George Preston, upon this reason, That he stood infeft in the foresaid lands upon an expired comprising; whereas the charger's right was only a base infeftment of annualrent, never clad with possession, until the suspender was publicly infeft upon his comprising:— It was answered for the charger, That the reason was no ways relevant; because his infeftment of annualrent was prior to the suspender's comprising; and, albeit it was base, yet the suspender had homologated the same, in so far as, since the expiring of this comprising, he had made payment of the annualrent, and had received discharges from the charger.
It was replied, That the payment of annualrent could not infer any obligation upon the charger's right; because the compriser, being a stranger, not knowing the validity of the annualrenter's right, might pay the annualrent for some years; as to which payments it might prejudge him, but could not hinder him thereafter to quarrel his right by reduction or suspension; as in the case of a superior who receives payment of the feu-duty, notwithstanding whereof he may quarrel the vassal's right upon any nullity, or by way of improbation, the feu-duties being to be paid by one who was not entered by the superior himself.
The Lords did find, That payment of the annualrent by the compriser, who was a stranger, and had not granted that infeftment of annualrent, was no homologation of his right; and therefore did suspend the letters, and reduce; unless they would offer to prove, by the compriser's oath, that it was specialiter actum, and the annualrenter's right made known when he received payment of the annualrent.
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