Subject_1 IMPLIED ASSIGNATION. Subject_2 SECT. III.
Conveyance of Superiority, does it carry casualties already fallen?
The Earl of Argyle v. The Lord M'Donald
Date: 15 December 1676 Case No. No 23.
A disposition of the superiority to the vassal himself, found to imply a discharge and assignation of the bygone feu-duties.
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The Earl of Argyle having acquired the superiority of some lands from the King, which, before forfeiture, belonged to his father, did pursue the Lord M'Donald to hear and see it found, that he had lost the right of the lands for not payment of the feu-duties, by suffering two years to run in the third. It was alleged for the Lord M'Donald, That Argyle's right being but a disposition of the superiority, could not give him right to any of the bygone feu-duties preceding the disposition; and therefore, unless there were three years resting since the right and infeftment, he cannot crave the property of the lands to be his, but so it is, that there are not so many feu-duties resting since his right. 2do, After the forfeiture of the Earl of Argyle, the defender did enter vassal to the King or his superior, and any right belonging to this Earl of Argyle, never being intimated until the intenting this process, he may lawfully purge by making payment at the bar of all bygone feu-duties. It was replied to the first, That a disposition or charter of superiorities, carries with it all the bygone casualties preceding that right, unless they were either uplifted or confirmed by the executors of the defunct superior. It was replied to the second, That the lands in question, belonging anciently to the Earl of Argyle, so soon as this Earl did obtain a new right from the King, all the vassals ought to have known thereof, and acknowledged him by payment of their former feu-duties contained in their reddendo. The Lords did find, as to the first, That a right of superiority being disponed, carried along with it all the bygone casualties and feu-duties contained in the reddendo of the vassal's charter preceding the disposition, and that there was no necessity these should be confirmed and disponed by executors, not being of the nature of moveable goods, but the consequences of real rights ex pacto feudali. As to the second, they found, That M'Donald having entered vassal to the King, and Argyle having gotten a new right, but never intimated the same by requiring the feu-duties or pursuing the same, that by a present offer at the bar to make payment of all bygones, the irritancy of the charter, or act of Parliament, might be lawfully purged.
Fol. Dic. v. 1. p. 423. Gosford, MS. No 922. p. 598.
*** See Stair's report of this case, No 35. p. 842.; and Dirleton's, No 31. p. 1751.
