Non-entry duties how ascertained. - In what holdings does Non-entry take place. Takes place until actual infeftment. But not if the superior be in mora.
Fullerton v. Denholms
Date: 18 July 1678 Case No. No 13.
Precepts of clare constat are voluntary, and the superior cannot be in mora for refusing them. Non-entry duties therefore run, till the heir be retoured, and get precepts out of Chancery requiring the superior to infeft.
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John Fullerton, as donatar to the non-entry of the lands of Straiton, holden of William Stodhart, pursues declarator of non-entry against Catharine and Marion Denholms, who alleged absolvitor, because the lands are holden feu, and they offer the feu-duties with a precept of clare constat, whereby they shew themselves desirous to enter, and were neither in contempt nor contumacy against their superior. It was answered, Non relevat, unless they were retoured heirs, and had precepts out of the chancery. It was replied, That they were called in this process as apparent heirs, and so were acknowledged by the pursuer, and it needed not to be instructed by a retour.
The Lords repelled the defence, and found the non-entry to run till the superior was required to enter upon the retour, and that a precept of clare constat is a favour which the superior is not obliged to grant. See Superior and Vassal.
Fol. Dic. v. 2. p. 5. Stair, v. 2. p. 636.*** Fountainhall reports this case:
July 17.—In a declarator of non-entry, alleged they had offered a precept of clare constat to their superior. Answered, He was not bound to subscribe it, because they were not served heirs.—The Lords found the lands in non-entry only quoad the retoured mail.
