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The late Marquis of Huntly having, in anno 1627, feued out the lands of Stroan for a feu-duty, pro omni alio onere, &c. cum multuris in the tenendas; Stroan continued notwithstanding to come to the mill of the barony, and in anno 1628, the Marquis took decreets against him for abstracted multures. In the year 1638 the Marquis feued the mill, with the multures of the lands of Stroan, per expressum, to M'Pherson of Ardbraylack, who pursued Stroan for abstracted multures.
The Lords found, That the feu-duty pro omni alio onere, with the clause cum molendinis, &c. though in the tenendas, did liberate Stroan's lands of the astriction, seeing thereby the disponer having so feued them without reserving the multures is presumed to have disponed them ut optimas maximas; but they found the pursuer's reply upon prescription relevant, and that it began to run after the decreet for abstraction in favours of the Marquis, and consequently to the pursuer.
The defender having proponed interruption, by carrying his corns to some other mill after the said decreet; and it being controverted, if for making up prescription, the pursuer must prove, that the whole corns of the lands alleged to be thirled for the space of forty years, were carried to his mill, so as the abstracting any part would make interruption; or, if it be sufficient that some considerable part of the corns yearly for forty years, was brought to that mill;
The Lords ordained the matter of fact to be tried before answer to this point.
Thereafter the pursuer alleged, That the defender's feu had fallen by the forfeiture of his superior my Lord Argyle, to the Marquis of Huntly the donatar, who had confirmed the pursuer's feu of the mill in anno 1676.
Answered for the defender: That he had also a confirmation of his lands of Stroan, with a novodamus from the said donatar, prior to the confirmation of the pursuer's right of the mill.
Replied for the pursuer: Before the confirmation in favours of the defender, the Marquis promised by a letter to confirm the pursuer's feu of the mill, containing the multures of the lands of Stroan, which promise was equivalent to a disposition of these multures, which then stood in the Marquis’ person by the gift of forfeiture.
The Lords found, That the posterior confirmation to the pursuer, though with a novadamus, did only extend to the feu of the mill as the pursuer had right thereto; and that the antecedent promise was not equivalent to a disposition, nor a modus habilis to convey the multures of the defender's lands, though the right of them was then in the Marquis’ person.
