Full Mails not due from Citation, where the Defender has a colourable Excuse.
Duke Hamilton v. Lady Callender
1687.
July. Case No. No 38.
Tenants who had bona fide paid to a life-rentrix, were assoilzied from all bygones, and decerned to pay, only from the date of the denied of declarator.
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In a special declarator, at the instance of the Duke and Dutchess of Hamilton against Lady Callender, to whom, as liferentrix of the lands of Mumrels, the tenants had made payment bona fide,
Alleged for the defender: He could not be liable as intromitter, in respect the Duke, as a party engaging for her, and consenting in her contract of marriage, and one at whose instance execution was appointed to pass, was bound to have seen her sufficiently secured in the jointure-lands by a public infeftment, especially himself being superior. But the pursuer may recur against, and recover payment from my Lord Callender's heir, who is liable to the defender in warrandice.
Answered; The Duke is but a bare consenter in a contract of marriage, which he with other relations subscribed for decency, without design to prejudge any rights in their own person. 2do, The Duke is but a consenter with, and on the part of the defender, as to her obligement for the tocher; and so his consent cannot be obtruded as to any obligement performable by the husband. 3tio, The clause ordaining execution to pass at his instance cannot make him liable to do diligence.
The Lords decerned and declared the non-entry since the citation in the general declarator, to be the full mails and duties, and repelled the defences proponed for the Lady Callender; and found, That her offering a charter with a composition, would not stop the non-entry; because the Duke was not obliged to (receive) her, she not being the vassal, but in the case of a singular successor.
Thereafter it was alleged for the defender; That my Lord Linlithgow, the heir of line, was not called, nor any decerniture against him.
Answered; There was an execution against the heir of line, which had fallen by, and is now produced; and the pursuer may extract a distinct decreet against him when he pleases. And in the case of the Marquis of Queensberry contra Earl of Annandale, No 69. p. 2210., the Lords sustained a declarator, though the heir was not called, but only the heritable possessor; besides, here the lands are tailzied to the Lord Callender, who is called and decerned.
Replied; By our constant practique the heir of line is called in non-entry; and the cited decision hath a speciality. 2do, My Lord Linlithgow's name is scored in the summons, and so no decreet can follow thereon.
The Lords found the decreet null.
Harcarse, (Non-Entry.) No 734. p. 208.*** Sir P. Home reports this case.
The Duke and Dutchess of Hamilton, superiors of the lands of Mumrels which is of the estate of Callender, having obtained a general declarator of non-entry, declaring the lands to be in non-entry since the decease of James Earl of Callender, and having pursued a special declarator against the tenants; alleged for the defenders, That they ought to be assolizied, because they had bona fide made payment to Lady Callender, who stood infeft in the lands in liferent; and it was alleged for the Lady, That albeit her infeftment was but a base infeftment not confirmed, yet the pursuers could not obtrude the want of confirmation, because they were consenters to her contract of marriage, by which she was to be publicly infeft, and secured in her liferent provision, and execution was to pass at the Duke's instance, for fulfilling of the contrsct in favour of the Lady, so that it was the Duke's fault, that the Lady was not publicly infeft. Answered, That the tenants after citation upon the general declarator, were in mala fide to pay the rents to the Lady, but they either ought to have retained the same in their own hand, or suspended upon double poinding, and the Lady's infeftment, being but a base infeftment, as also Earl Alexander her husband's infeftment being but base and not confirmed, the lands were in non-entry, since the decease of Earl James, who was last publicly infeft; and the pursuers were consenters to the contract of marriage, because the Dutchess was a near relation, and the Duke was obliged for the portion, and the pursuers consent to the marriage, and execution being appointed to pass at the Duke's instance for fulfiling the obligements thereof in favours of the Lady, did not prejudge them of the causualties of superiority, seeing hoc non agebatur by the foresaid contract, that the pursuer should confirm Earl Alexander the husband's base infeftment of the property, and the Lady's infeftment of the liferent gratis. The Lords repelled the defence proponed by the Countess of Callender, in respect of the reply, and sustains the declarator of non-entry, since the death of James Earl of Callender, till the citation of the general declarator, for the feu duties, and from that time, for the full rents of the lands, but assolizied the tenants for all bygone mails and duties paid, preceding the date of this interlocutor, providing they prove payment of the same by writ; and decerned the tenants in time coming.
Sir P. Home, M.S. v. 2. No 825.
*** Fountainhall's report of this case, in No 70. p. 2211. voce Citation.
