Subject_1 GENERAL DISCHARGES and RENUNCIATIONS. Subject_2 SECT. VIII.
If presumed to comprehend legal provisions and undelivered bonds of provision.
Maxwell v. Irving
1685.
December. Case No. No 30.
Found that a discharge of all a party could ask or crave as heir to his father, did not exoner as to what belonged to the granter as heir to his grand-father; though his father survived, and was heir apparent to his grand-father.
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John Maxwell of Barncleugh having pursued Agnes Irving, Lady Garnsallock and her Husband, to count for several years rent of certain lands belonging to the said John Maxwell as heir to his grandfather, and whereof the Lady as tutrix to him, either did intromit, or ought to have intromitted; alleged for the defender, That she was not liable to count, because the pursuer had granted her a discharge of all that he could lay to her charge, either for omissions or intromissions with any goods or gear belonging to him as heir to his father. Answered, That the discharge being only as to what the pursuer could ask or crave, as heir to his father, it could not exoner the defender of what he could crave as heir to his grandfather. Replied, That the pursuer's father having survived the grand-father, so that any estate that belonged to the grand-father being hæreditas delata to the son, the discharge ought to comprehend the rents of any estate that belonged to the grand-father, especially seeing the pursuer's father being apparent heir to the grand-father, any interest that the pursuer had in the grand-father's estate did only accresce and belong to him by the decease of the father. Duplied, That the father had a separate estate of his own, wherein he was infeft, distinct from that which belonged to the grandfather, which was intromitted with by the defender; and there being an surplus rent more than satisfied the defender's liferent, that was the only subject that fell under the discharge; as also, the pursuer only grants the discharge as heir to his father, and not as heir to his grandfather.
The Lords found that the discharge of all that the pursuer could ask or crave as heir to his father, did not extend and exoner the defender as to what belonged to him as heir to his grandfather.
Fol. Dic. v. 1. p. 344. Sir P. Home, MS. v. 2. No 747.
