Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Macgilchrist and His Tutors v. Mackewan and Murdoch
Date: 29 November 1694
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The Lords reduced and suspended the Commissary of Glasgow's decreet; and found he had done wrong in preferring Macgilchrist's infeftment to Murdoch's, which was three years prior; and that the ground of law he went on was unjust,—viz. that Mackewan's seasine, being of shops not then built, but only to be built, was informal, and could not validly be taken till the same had been built, and so was a non ens; whereas Macgilchrist comprised the ground-right and property of the waste burnt tenement. For the Lords found, that it was not a disposition of shops only, but of the ground, superficies et solum, whereon they were to be built; and that the clause, “as they shall be rebuilt, and after he has made his election,” was not suspensive of the real right, as if it were not to take effect till the building or election made, but was exegetic and explicatory in his favours, and so cannot be detorted to his prejudice; and it was certainly the party's meaning to give him a right to the area aye and until it was built. And the Lords ordained the reporter to hear them, on what proportion of the price will fall to Murdoch; seeing he has not right to the whole, but only to one shop. Yet consideration is to be had, not singly of the worth of the ground, but of the value of the shop, if it had actually been reedified.
