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Subject_1 MINOR NON TENETUR, &c. Subject_2 SECT. III.
No privilege where the process is founded upon the predecessor's deed. - Nor where action was commenced against the defunct. - Nor where the Minor is the first provoker.
Simon M'Kenzie v. Donald M'Kenzie
Date: 27 June 1710 Case No. No 52.
The brocard is not effectual in any process for making good the right of a purchaser of lands.
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Mr Simon M'Kenzie of Allangrange standing infeft in these lands with the pertinents, pursues Donald M'Kerizie of Kilcowie in a molestation, and declator that the defender ought not to disturb and molest him in the peaceable possession of the bog of Drummore, which is not only an uncontroverted part and pertinent of the barony of Allangrange, but was so found by an indenture and decreet-arbitral in 1677, and craving it may be found to pertain and belong to him in property. Alleged for Kilcowie, the defender, That in so far as he libelled a molestation, non facit vim, he was willing to answer; but having accumulated in this process likewise a declarator of property, he was minor, and so had the benefit and privilege of the maxim, quod non tenetur placitare super hæreditate paterna, as was clear from the decision marked by Dirleton, Hartshlaw contra Hartwoodburn, No 139. p. 9009, and Sir George M'Kenzie's observations on the 42d act 1587. Answered, No minor ever hitherto pleaded this privilege to extend to molestations in possessory actions, even though accumulated in one libel with a declarator of property; and the decision does not meet this case. For the brocard founded on, has as many exceptions nearly as the cases wherein it holds; amongst which this is one, that in judicio finium regundorum, Where the question is about meiths and marches, it takes no place Next, there is a plain decreet-arbitral in the case which is finis litium, fixing march stones, and adjudging this bog to the pursuer's lands. Replied, That this was to engage a poor minor to produce his charter-chest, and endanger the loss of his property which law had secured him against; and he was not bound to debate the import of the decreet-arbitral, though it was plainly ultra vires compromissi, the marches not being submitted; and all the country about, knew that the said bog was always a commonty to both lands, though Mr Simon would now most iniquously appropriate it to himself. It occurred to the Lords, that there was another exception from the rule pleaded on, viz. if the minor's predecessors were denuded of the right in his own lifetime; for then non placitabat de hæreditate paterna; and here Allangrange positively asserted that Kilcowie the defender's grandfather was denuded of this bog in 1677, by the decreet-arbitral; therefore they remitted to the Ordinary to hear parties how far his predecessors were denuded, before they would oblige him to debate in the declarator of property.
Fol. Dic. v. 1. p. 589. Fountainhall, v. 2. p. 580.*** Forbes reports this case:
1710. July 25.—Upon a submission made by Alexander M'Kenzie of Kilcowie heritor of the barony of Allans, the bog of Drummore being decerned by a decreet-arbitral in anno 1677 to be a part of these lands; and he having in the year 1678, disponed to Mr Roderick M'Kenzie advodite the barony of Allans with the pertinents, and delivered to him the writs and evidents upon inventory, comprehending the decreet arbitral; Mr Simon M'Kenzie who derives right to the barony of Allans by progress from Mr Roderick, pursued a declarator of property and molestation, against Donald M'Kenzie, grand-child and heir to the said Alexander M Kenzie, and his tutor, for declaring that the bog of Drummore belongs to the pursuer, and that he, his tenants and servants ought not to be molested in the possession thereof.
Alleged for the defender; He is content to debate with the pursuer, if he will restrict his libel to a molestation. But he ought to be assoilzied from the conclusion of declarator of property; because, his grandfather died in the possession of the bog in controversy, and himself is minor, “qui non tenetur placitare super hæreditate paterna.”
Replied for the pursuer; His declarator of property not being founded on his ancient rights and evidents, but upon the positive deed of the defender's predecessor, viz. his submission and the decreet-arbitral following thereon, assigned delivered by him, with the disposition of the barony of Allans to the pursuer's author, whereby the defender's predecessor was absolutely and as fully denuded, as if by a liquid obligement under his hand he had obliged himself to dispone the said bog; or had acknowledged it to be part and pertinent of Allans; the defender can pretend to no privilege of exemption from answering to both the conclusions of the pursuer's libel.
The Lords found, that the brocard minor non tenetur placitare takes no place in the present case; and therefore repelled the defence.
