Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. III.
No privilege where the process is founded upon the predecessor's deed. - Nor where action was commenced against the defunct. - Nor where the Minor is the first provoker.
The Laird of Dun v. Scott
Date: 28 January 1681 Case No. No 48.
Found in conformity with Hepburn against Yule, No 41. p. 9096.
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The Laird of Dun having obtained a gift of recognition of the lands of ——, pursues declarator against the present heritors, who alleged, 1 mo, No process, because the pursuer is not infeft upon the gift of recognition; for recognition being in effect a reduction, it is only competent upon a real right by infeftment, and it uses not to be pursued till the donatar be infeft. It was answered, That this declarator is founded upon the King's right as superior, and it is not a declarator of the donatar's right to the land, but a declarator that the vassal hath lost his right, which requires no infeftment to the donatar. “The Lords sustained the declarator at the donatar's instance, though not infeft.” 2do, The defender further alleged, That the recognition was incurred by the alienation of his author, who was bound in warrandice, and therefore he ought to be called. “The Lords repelled this defence, seeing the present heritor the King's vassal was called, who might intimate the plea to his author if he pleased.” 3tio, The defender further alleged, That this declarator being in effect a reduction, minor non tenetur placitare de hæreditate paterna. It was answered, That this holds only in the defects in competitions of the vassals' rights, but in no interest to the superior.
The Lords repelled also this defence, but found no process till the minor's tutors or curators were called. See Title to Pursue.
Fol. Dic. v. 1. p. 590. Stair, v. 2. p. 847.*** Fountainhall reports this case:
A donatar of recognition pursuing a declarator, alleged for the pursuer, produces no title but a signature or gift, and till he were infeft he had not a complete interest. This the Lords repelled in respect of the King's Advocate's concourse, the King haying right jure superioritatis, without any title but his sasine jure coronæ. 2do, Alleged, All parties having interest are not called, viz. Logie the defender's author. This the Lords sustained. 3tio, The defender was minor, and the lands were heritage, and so non tenetur placitare. This was repelled in the recognition, because it was the declaring a feudal delict. 4to, The tutors and curators were not called. This was also sustained, and the author's heirs and the tutors are ordained to be cited: And found it not sufficient, that the representatives of him were called, by whose deed the recognition was incurred.
