Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XI.
Effect of Novodamus.
Hay v. Creditors of Muirie
Date: 23 February 1681 Case No. No 71.
A novodamus was found to be virtually a confirmation of all anterior base rights, so as to preclude them from being conjoined with alienations made after the novodamus to infer recognition.
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John Hay of Muirie having obtained a gift of recognition from the King, of the lands of Muirie, pursues declarator thereon against the creditors and vassals of Muirie, who alleged no process, because there is nothing to instruct a recognition incurred, but extracts of sasines out of the register; and though the principal sasines were produced, they are but assertions of notaries, unless the warrants were produced. It was answered, That these sasines are sufficient ad fundandam litem, and have ever been so sustained; nor is the pursuer obliged to produce the warrants, but the defenders may have incident by horning against the havers of the warrants, if he found upon any quality therein in his favours. “The Lords found the sasines sufficient ad fundandam litem, but allowed the defenders diligence by horning against the havers of the warrants, without prejudice to insist in improbation of the sasines and warrants against the sub-vassals, to whom they are granted by the King's ward Vassal.” The defenders further alleged, That the recognition could not be incurred, unless the major part of the ward-fee were alienated by deeds consisting together at the same time, but if some of them were purged by redemption, or resignations ad remanentiam, before the other subaltern rights were granted, the rights purged could be no part of the deeds inferring recognition; neither could infeftments for liferent, or for relief in warrandice, be taken, if the liferenter died, or the distress were purged before the subsequent deeds inferring recognition, although they were not then purged, yet they can incur no more as to the hazard of the distress or liferent, which the Lords found relevant. The defenders further alleged, That the subaltern rights granted by the authors of the ward vassal, could not come in with the last ward vassal's deeds of recognition, because the King, having received a singular successor, his vassal doth thereby consent to his right, and cannot quarrel it upon anterior deeds by his author. It was answered, that the King grants infeftments upon confirmations or resignation of course, and his officers neither know nor consider, whether there be subaltern rights granted which may inchoat or compleat recognition.
The Lords found, That subaltern rights granted by the ward vassal that now is, or by his predecessors and authors, did concur to infer recognition, so soon as they exceeded the worth of the half of the fee, unless there intervened a novodamus, which would purge anterior deeds of recognition, whether inchoat or compleat. See Recognition.
Fol. Dic. v. 1. p. 437. Stair, v. 2. p. 865.
*** See No 61. p. 6470. and No 67. p. 6500.
*** The like was decided, Lord Advocate against Creditors of Cromarty, 23d February 1683, No 60. p. 6467.
