Possession must be restored at the termination of the Right.
Duke of Lauderdale v. The Lord and Lady Yester
Date: 2 February 1676 Case No. No 75.
A declarator of redemption craving the defender to renounce all right he had to certain lands, in any manner of way, was sustained; but the Court allowed the defender to condescend upon any right which he had separate from that acquired from the pursuer, which they declared should be reserved to him as accorded.
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The Duke of Lauderdale having obtained a decreet of declarator of redemption of his estate, disponed to his daughter, the Lady Yester, redeemable by a rose-noble; and having charged the Lord and Lady Yester to renounce, and given in a draught of the renunciation as his special charge; it was objected by the Lord and Lady Yester, That, by the draught, they were to renounce all right to the estate of Lauderdale, which they had or could pretend any manner of way, which ought to be limited by virtue of the rights redeemed, for there is no reason to exclude any other right, and particularly they condescend upon the right of some steads in Lammermoor, whereunto they have a several undoubted right of property, and which the Lords have already reserved, as accords of the law, and therefore there ought to be the like reservation of any other right they have. It was answered, That the decreet of declarator bears expressly, to renounce all right whatsoever, which is the common stile of declarators of redemption; which, as it is specially a declarator of redemption, so it is generally a declarator of right; and therefore in the declarator of redemption, the defender might have proponed a defence upon any distinct right, which, if instructed, would have been accepted and reserved simply from the general clause; or, if there had been any evidence of it, it would have been reserved as accords; and the charger is yet willing that the like reservation be as to any right the suspenders shall condescend upon, or instruct and evidence; and there is here a special consideration that the special clause should stand, because there is an expired apprising of the estate of Lauderdale assigned to the suspenders by the Duke's desire, upon the same terms, with the tailzie and reversion contained in the contract of marriage, which, if it be not renounced by that general clause, would breed a new plea and process.
The Lords sustained the draught of the renunciation as to the general clause, as being conform to the decreet of declarator in foro; but allowed the suspenders to condescend upon any several right, not containing the like reversion; and if they could produce and instruct the same, declared the same should be reserved simply; or if they could but give any good evidence thereof, the same should be reserved as accords.
