Scottish Court of Session Decisions

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

The Marquis of Douglas
v.
William Somervel

Date: 23 February 1675

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This cause being debated upon the 23d day of December last, the Marquis further insisted, upon this ground:—That William Somervel could not defend himself with the rental of the lands in question; because, after the rental, his father had taken a feu-right of the same lands, in favours of his son, to whom he had formerly procured the rental: which feu, as being a more noble and incompatible right, did absorb and extinguish the rental; and which feu, being delivered up to the marquis, and past from,—all right in that feuar's person is thereby extinct. It was answered, That, albeit a rental and a feu cannot both have effect at the same time, yet they may consist as cumulative securities,—the one, failing the other, to subsist; so that the possessor may defend himself with either; and, if either should be reduced, the other would remain as the effectual right: and, therefore, the giving up, or renouncing the feu, to the marquis, doth only evacuate the same, but doth not take away the rental, which was anterior thereto; and no renunciation can be further extended than to what is expressed, unless it were for an equivalent onerous cause, with absolute warrandice. It was replied for the pursuer, That the giving up of the evidents of the feu by the father, who acquired both rights for his son, an infant, and for onerous causes, doth import absolute warrandice; and must be presumed to renounce all rights, unless the rental had been expressly reserved. The Lords ordained the pursuer to condescend how and when the evidents of feu were delivered up; and to examine the communers and witnesses thereanent, that it might appear quid agebatur; whether to quit all right, or only the feu-right.

Vol. II, Page 325.