Subject_1 JUS SUPERVENIENS AUCTORI ACCRESCIT SUCCESSORI. Subject_2 SECT. II.
Where the Author is not liable in Warrandice.
Town of Musselburgh v. Scot
Date: 22 December 1675 Case No. No 13.
A supposed superior granted infeftment to an appriser. He afterwards acquired the superiority. This did not validate the right of the appriser, who had paid no composition.
Click here to view a pdf copy of this documet : PDF Copy
Adam Scot, his authors and predecessors being infeft in the heritable knaveship of the mills of Musselburgh, the town of Musselburgh having acquired right from the Duke of Lauderdale to the superiority of the knaveship, pursue a declararor of non-entry thereof against the said Adam, who alleged absolvitor, because he stands infeft by the Bailies of Musselburgh. It was replied, Non relevat, because that infeftment was granted only upon obedience upon an apprising led at the defender's instance, at that time when the town had not acquired the right of superiority. It was duplied for the defenders, That jus supervenient auctoris accrescit successori; and therefore the supervening right to the town, must accresce to the defender. It was triplied, That the maxim holds not in acts necessary, done for obedience. 2do, It holds not, except where there is absolute warrandice, or a cause onerous importing it. It was quadruplied, That here there was no necessary act, because there was no charge of horning, nor suspension.
The Lords found that the receiving of the defender was a necessary act of obedience upon the apprising, albeit there was no charge, and found that the supervenient right did not accresce to the defender, unless he had paid a year's rent of composition to the pursuers.
Fol. Dic. v. 1. p. 514. Stair, v. 2. p. 390.*** Gosford reports this case:
There being a declarator of nonentry pursued at the instance of the town of Musselburgh, as superiors of their mills, against Adam Scot, for the bygone duties, it was alleged absolvitor, because the defender was entered vassal by the pursuers. It was replied, That the time of the entry, the pursuers having only right to two of the said mills as superiors, and since having acquired from the Duke of Lauderdale the superiority of the other mill, who then had the only right thereto, any charter granted by them could not prejudge them of the non-entries of that mill, because it was only granted in obedience of a charge of horning at the defender's instance, who had comprised the same from ths vassal, which not being a voluntary deed, but to free themselves from the extremity of horning, they coming in the place of the true superior, who was never charged, cannot be prejudged of the non-entries. It was replied, That that charter being granted by the town of Musselburgh, must be reputed a voluntary deed, it being in their power to have suspended the charge; and they having acquired thereafter the right of superiority, can never quarrel their own charter, seeing jure accretionis the defenders right of vassalage can never be quarrelled by his authors who granted the charter. The Lords having considered this case, did find that the charter bearing expressly that it was granted in obedience of a charge of horning, could not be reputed a voluntary deed, and that it could only be interpreted cum periculo petentis, unless the defender could allege that he paid a composition when he obtained the same, not only with respect to the mills, but likewise of that mill whereof they acquired the right of superiority, from the Duke of Lauderdale; so that they being singular successors as to that mill whereof they had no right standing in their persons the time of their charge, and when they granted a charter in obedience they could not be thereby prejudged of the benefit of non-entries, which undoubtedly would have belonged to their authors, unless they had received composition, which could only put them in the case of a voluntary deed, and give the vassal ground to plead that he had jus accretionis.
