Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
The King's Donatar v. Patrick Yeoman of Drybtjrgh's Heir
Date: 27 February 1680
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The King's Donatar pursues Mr Patrick Yeoman of Dryburgh's heir for the avail of his marriage, his father having died infeft in ward-lands.
Alleged,—He only had apprised ward-lands, the legal whereof was not expired, and the sum was satisfied by payment, at least by intromission within the legal; and so, his apprising and infeftment being extinct, the ward could not fall. Answered,—The extinction of the apprising by intromission, if it had been prior to the vassal's death, would liberate; but the extinction of an apprising after the casualty is devolved to the king, and there is a jus quæsitum to him, after that it ought not to prejudge the king.
The Lords found the casualty of marriage and ward due: which interlocutor they ratified 28th July 1680.
Quæritur whether lands fall in ward by the reverser's death during the legal, seeing he is not yet fully denuded of the property.
An apprising is only pignus prætorium, and a security answerable to that in the Roman law called missio in possessionem ex secundo decrcto, and not a right of property, till the legal expire; and, therefore, in charters on apprisings, they are bound to pass a new one after the legal. And what if there were twenty apprisers within year and day of ward-lands? shall the superior have right to every one of their marriages?
