Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Creditors of Forbes of Riris, viz Sir John Hall, Skeen of Halyards, &c. v. The Lady Riris
Date: 13 July 1694
Click here to view a pdf copy of this documet : PDF Copy
The first question was,—If Sir John Hall had loosed his infeftment of annualrent, by requiring his money, and adjudging therefore. The Lords found that subtilty (which formerly took place with us,) is now exploded, and is no passing from the former. Second, There were some of the creditors to whose rights the Lady had consented, and others not: These who had the Lady's consent distressed the other lands wherein she was not infeft, and so excluded the creditors who had not her consent from their annualrents. There was no doubt but they might insist against any part of the lands; but the other creditors debarred offered to pay them, if they would assign them to the right of the Lady's jointure-lands.
A question arose,—If they were obliged to assign; seeing the Lady conveyed them no positive right, but her consent was merely a non repugnantia. The Lords desired informations on this point.
The third was,—Halyards proved his base infeftment was clothed with possession by holograph discharges, given by him many years ago to Riris, the debtor, of sundry years' annualrents. Alleged,—They did not prove the date, and so did not clothe the base right with possession. Answered,—There was nothing more customary than to grant such of annualrents; and they were obtained out of the charter-chest, by a diligence, after Riris's death; and, in fortification thereof, Halyards was willing to depone they were truly of the date they bore.
All which being conjoined, the Lords thought sufficient to sustain them; especially seeing now, by the late Act of Parliament 1693, the difference between base and public infeftments is taken away. If they had been granted by the creditor to the tenants, there would have been less doubt, these not requiring writer's name nor witnesses.
