Martha Lockhart, and Hary Douglas, her Husband, v. The Earl of Roxburgh
Date: 19 March 1685 Case No. No 31.
Click here to view a pdf copy of this documet : PDF Copy
Martha Lockhart, and Hary Douglas, her husband, against the Earl of Roxburgh, is reported by Castlehill; and Roxburgh's tutors claiming the bygone annualrents for the non-entry of sundry years, during which they had lien out without seeking to be infeft, since Mr Robert Foulis, their author's death, who was last infeft, because in such cases valet seipsum; —— The Lords found, though Roxburgh was superior of this annualrent, yet, seeing the heritable bond from Roxburgh bore an obligement to pay the annualrent, as well not infeft as infeft, this was equivalent to a discharge of the non-entry; and therefore found no non-entry due.
Fol. Dic. v. 2. p. 6. Fountainhall, v. 1. p. 355.*** Harcarse reports this case:
In a pursuit against a debtor for the annualrent of an heritable bond, where-upon infeftment had followed,
Alleged for the defender, That the lands out of which the annualrent is payable are in non-entry since the death of the last vassal, and the simple non-entry of annualrent valet seipsum, and must compense the pursuer's claim.
Answered for the pursuer; The annualrent is declared in the bond to be due and payable to the creditor, as well not infeft as infeft; 2do, The infeftment of annualrent being holden blench for a penny, nothing is due but the blench-duty before declarator.
Replied; The clause for payment of the annualrent to the creditor, as well not infeft as infeft, takes only place before infeftment follow. But if the vassal lie out after infeftment, the land or annualrent ought to be in non-entry, and the non-entry duties will compense the annualrent quod valet seipsum, even before declarator.
The Lords found, That the personal obligement to pay annualrent to the creditor, as well not infeft as infeft, took place, both after and before infeftment, and the pursuer might crave payment without entering or infefting himself in the annualrent; and found, That the non-entry duty of this annualrent was only the blench-duty till declarator; and resolved to decide so in all time coming. But here was no singular successor in the superiority, against whom the personal obligement to pay would militate.
