Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. I.
Whether acting as Superior, by receiving Casualties, implies a Discharge of any Claim to the Property.
Wilson v. Smith
Date: 15 December 1687 Case No. No 5.
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The Lords found, in a case betwixt Wilson and Smith, that a subject superior's accepting feu-duties, after he knew a recognition was incurred, was a passing from that casuality. Albeit it was argued from Craig, that argumentum a forisfactura ad recognitionem was good; and yet the taking feu-duties from a rebel would not be a remitting of a forfeiture.
Fol. Dic. v. 1. p. 430. Fountainhall, v. 1. p. 490.*** Harcarse reports the same case:
1687. December 16.—The Laird of Dundas having feued out some acres of land, with an irritant clause de non alienando, which the feuer, notwithstanding the irritancy, did wadset; and Dundass having thereafter disponed the superiority of the feu to Mr George Wilson, Mr George pursued a reduction and declarator of extinction of the feu upon the foresaid irritant clause.
Alleged for the defender: That any fault committed by him was in Dundass's time, who disponed only the superiority to the pursuer. 2do, It was offered to be proven that Dundass did pass from the said irritancy, and approve the wadset, by accepting feu-duties from the wadsetter, who was in the natural possession, and (as in recognitions) any approbation of the superior, whether antecedent or subsequent, should purge the irritancy. 3tio, The wadset was renounced before the pursuer acquired the superiority.
Answered for the pursuer; The right of superiority comprehends omne jus in the lands, and the irritancy being incurred in Dundass's time, and not reserved, nor the benefit thereof given to any, transit to the pursuer by Dundass's disposition to him. 2do, The granting of discharges to the wadsetter of the feu was not modus habilis, to extinguish the effect of irritancy; for that could only import at most a security to the wadsetter of his right, and not a security of the reversion to the granter of the wadset; so that, after redemption of the wadset, the feu returned free to Dundass, and consequently to the pursuer's singular successor. And recognition being incurred by the granting of a wadset, a subsequent confirmation of the wadset ought not to secure the reversion. 3tio, The redemption of lands, before quarrelling, purges no irritancy incurred through the alienation.
“The Lords found the second allegeance relevant to purge the irritancy.”
