A clause in a feu-right discharging the feu-duties in all time coming, found not effectual against a singular successor in the superiority.
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The Lady Blackbarony being infeft in liferent, and her son John Murray in fee in the lands of Cringltie, pursues improbation and reduction against Borrowmans, of a feu-right of the said lands granted to them by umquhile Blackbarony, in which feu there is a clause, “discharging the feu-duties in all time coming,” whereby the feu became null as wanting a reddendo, at least it ought to be declared, that the foresaid discharge could not be effectual against the pursuers, who are singular successors to Blackbarony, who disponed the superiority to Mr William Burnet, from whom it was apprised and adjudged, whereunto the pursuers have right and stand publicly infeft. The defenders alleged absolvitor, because the dicharge being contained in the body of the feu-right becomes a condition of the feu, which therefore becomes in effect blench; and though provisions in infeftments, to grant gifts of escheat gratis, be not effectual against singular successors, being but personal obligements, yet this discharge is no obligement, but a present passing from the feu-duty in time coming. It was answered, That if the discharge were effectual, it would necessarily annul the feu, which cannot subsist without a reddendo, nor can it be equivalent to a blench, which hath always a reddendo, si petatur.
The Lords found the discharge of the feu-duty contained in the feu, did not annul the same, but found that it was not effectual against singular successors, and that the pursuers had right to the feu-duty since they acquired right to the superiority notwithstanding thereof.
