Found in conformity with Rollo against Murray, No 1. p. 4185.
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Margaret Hamilton and Mr David Orme her husband, having right from the late Marquis of Athol to some feu-duties due out of the Lordship of Falkland, pursue my Lord Burleigh, heritor of Freuchy and Newton, for payment of the feu-duties of these lands personali actione for many years bygone. Alleged, That for all the years since I bought these lands I am most willing to pay at the bar; but, for years preceding my purchase, I can never be personally liable; neither is the superior at any loss, for he has two remedies; he can either summarily poind the ground for his bygones, it being debitum fundi affecting the land, or he may adjudge, which will prefer him to all other creditors. I suppose, one acquires an infeftment of annualrent; he can poind for his by gones, but he will not make a new intrant possessor personally liable for the years preceding his entry; even so with a superior; for all personal actions arise ex aliqua personali obligations. But here there is no foundation for any such conclusion against a purchaser quoad feu-duties preceding his right. The superior's interest is real contra fundum, and against all intromitters with the rents quoad the years they possest, but no farther. Answered, Superiors besides the foresaid two remedies conceded them, have also a third, making the intromitters with the rents liable ad valorem of their intromision for all feu-duties resting, though prior to their right; and which naturally arises from the tenor of their feudal contract; for though poinding secures the superior abundantly, yet the personal obligement on the vassal is the jus pinguius, and brings him sooner to his purpose. It is true, apprisers and adjudgers may have some pretence to debate this, being successors ex alienatione involuntaria, and lie under a necessity to take what they can get for paying their debts; but voluntary purchasers are bound to see these bygones paid and discharged, or retain a part of the price in their hands to purge them; and if they do not, they have themselves only to blame. Likeas, the clause reddendo inde annuatim ties the vassal as fully as if his charter were a bond; and the 4th act of Parliament 1669 has given the superior a farther privilege that he can poind summarily before the days of the charge are expired. The question is of no great importance as to vassals, seeing their ground must pay all bygones; yet the Lords, by plurality, found the vassal personally liable, even for years preceding his purchase, the superior always proving he had intromitted with as many of the mails and duties as would pay these bygones; so by this interlocutor 39 years’ feu-duties may be cast upon one year's rent, if its extent be able to pay them, and the heritor has uplifted it.
The Lords altered this interlocutor upon a bill afterwards given in.
Fol. Dic. v. 1. p. 296. Fountainhall, v. 2. p. 708.*** Forbes reports the same case:
In the action at the instance of Margaret Hamilton and her Husband, as having right from the late Marquis of Athol, to certain feu-duties out of the lands of Newton and Freuchy, against the Lord Burleigh and James Wright the present heritors, for payment of bygone feu-duties resting for years that their authors possessed these lands,
Alleged for the defenders; They being singular successors, cannot be liable by a personal action to pay feu-duties due for years before they had right to the lands, March 29th 1636, Cowan contra Elphinston, No 21. p. 202.; March 26th 1629, Rollo contra Murray, No 1. p. 4185.; January 30th 1639, Cock-burn contra Trotters, No 4. p. 4187.; July 19th 1665, Winerham against the Lady ldington, No 5. p. 4188, because feudal contracts are now very rare, and cannot be pretended in the present case. The reddendo in charters is not a personal obligement, but a real right to the superior, to poind the ground for his feu-duties. It is true that annualrenters, who in their infeftments of annualrent have an implied assignation to mails and duties, may, by a personal action, recover the whole bygone annualrents due to them from one who hath had but one year's intromission with the rents of the burdened lands; but it is not easy to conceive, how a superior can pretend to have such an assignation to mails and duties implied in his right of superiority.
Replied for the pursuers; Seeing the rents of lands are liable to be poinded for all bygone feu-duties resting owing, intromitters with these, which are the subject of the superior's payment, should be personally liable; as annualrenters may, by a personal action, recover their whole bygone annualrents from any one who hath intromitted with as many of the rents of the burdened lands, March 15th 1637, Guthrie contra E. Galloway, No 4. p. 567. For however feus be generally now constituted by charter and sasine, or a writ flowing only from the superior, without any formal contract signed by both parties; there is yet a mutual obligation implied in the constitution of every feu, importing mutual prestations both upon the superior and vassal. And the superior as dominus directus, hath a more direct title to mails and duties, than any annualrenter; especially in feu-holdings, which are generally considered only as emphyteuses, and the vassal as emphyteuta, or a kindly tenant.
The Lords found, that the defenders are not personally liable, though it were instructed, that they had intromitted with as much of the rents as would satisfy the bygone feu-duties acclaimed.
