Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Rolland of Disblair v. The Town of Aberdeen
Date: 26 December 1705
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Katharine Rolland, relict of Doctor Guild, having mortified, for bursars to the College of Aberdeen, the lands of the mill of Murtle, and likewise the lands of Disblair, under certain conditions therein mentioned; Rolland of Disblair, her nephew, raises a reduction thereof upon the head of deathbed, and gets witnesses examined, to lie in retentis; who seemed to prove that she died shortly after, without going either to kirk or market.
In which process it was alleged for the Magistrates of Aberdeen,—That he could not quarrel the said mortification; because he had homologated the same, in so far as he had paid 1700 merks in prosecution of it, which was a clear owning and acknowledging the said mortification.
Answered,—He had paid it, qua patron; and so it was ascribable to another title.
The Lords, in 1702, on the report of the Lord Phesdo, sustained the homologation as sufficient to elide the reason of deathbed and to exclude him from insisting therein.
This interlocutor being reclaimed against by Disblair, the Lords, upon bill and answers, gave them a new hearing; wherein it was alleged by Disblair, —That he was not only patron, but was also left heritable chamberlain and collector of the rents, and the haill customs and casualties of the lands appropriate to himself; and what he paid was nowise in prosecution of the mortification, but in obedience to a charge; and though they be all contained in unico contextu, so that he cannot both approbate and reprobate the same writ, yet homologations are never inferred where they can be attributed to another right; as here he does. Yea farther: the paying one article of a decreet-arbitral has been found not to homologate other parts of it, nor to preclude him from quarrelling them in a reduction; 24th July 1661, Jack; 22d November 1662, Primrose; 27th February 1668, Chalmers; where a minister's accepting a tack-duty of teinds did not hinder him to insist in a reduction of that tack, as if it had been homologated by him; and, 12th March 1684, Archbishop of St Andrew's against Beton, it was found, That the Archbishop's accepting the canon or feu-duty of the charter granted by a former bishop, changing the holding, did not exclude the Archbishop from quarrelling that charter; and that his acceptance of payment did not infer homologation.
Answered,—That there could not be a more positive and express deed of homologation, the 1700 merks being paid out of the specific lands of Disblair, as the discharge bears; so the application is as particular as if he had consented, under his hand, to the mortification; which would have elided this process ex capite lecti.
The Lords, by a plurality of seven against six, repelled the homologation as not sufficient to debar him from quarrelling the mortification, ex capite lecti; and altered the former interlocutor.
The Town alleged his paying qua patron could never defend him, seeing patronage is jus indivisibile, and must be ascribed to the whole right, and can never rescind from any part of it; and Disblair urged, that nemo prcesumitur donare vel suum temerejactare, and therefore a dubious homologation ought to be so interpreted as not to infer his passing from his lands of Disblair, without some just, necessary, and onerous cause for the same.
