Subject_1 IMPLIED DISCHARGE and RENUNCIATION. Subject_2 SECT. XI.
Effect of Novodamus.
Colonel Ersrine v. Sir George Hamilton
Date: 12 February 1713 Case No. No 73.
A charter of ward lands from the Crown, containing a no vodamus, with a change of the holding from ward to blench, with these words, non obstante quod eĉdem terrĉ per servitium wardĉ et relevii antea tenebantur, quam tentionem et omne beneficium ejusdem nos in perpetuum renunciamus et exoneramus, was found to import a discharge of the bygone casualties of ward.
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In the competition betwixt Colonel Erskine and Sir George Hamilton, mentioned supra, February 8. 1709, No 68. p. 2827.; Sir George having now founded upon a decreet of adjudication led against the said estate in the year 1680, by Sir Robert Miln his author, for the modified avails of the wards and marriages of three successive heirs of Duncan Lindsay, gifted to James Loch, and by him transferred to the adjudger, the Lords found, That Duncan Lindsay being denuded by the registered disposition of the apprising within the legal in favours of Patrick Wood the reverser, no casuality out of the lands apprised fell by his death; and that the Earl of Kincardine, Colonel Erskine's author, having, in the year 1663, long prior to the gift, obtained from the King a charter containing a novodamus and change of the holding from ward to blench, with the words, non obstante quod eædem terræ per servitium wardæ et relevii antea tenebantur, quam tentionem et omne beneficium ejusdem nos in perpetuum renunciamus et exoneramus; the said charter did import a discharge of these casualities, albeit they had fallen.
Albeit it was alleged for Sir George Hamilton, 1mo, That Duncan Lindsay (who stood in the fee with respect to the superior) was in this case vassal, notwithstanding his disposition to Patrick Wood, who was not thereby vassal, though he had jus ad rem. Nor yet was Sir John Blackadder vassal, quoad whom the apprising and the infeftment thereon was in the same state as before the disposition. The act of Parliament establishing the register of reversions doth not concern the superior's right, which cannot be altered by any deed of the vassal, registered or not, without his own concurrence in acknowledging the disposition by granting a charter or otherways. 2do, The general clause in the novodamus granted by the King, cannot extend against his Majesty to any casualty of the superiority, except such as are particularly expressed, Stair Instit. lib. 2. tit. 3. § 15. July 17. 1672. Lord Hatton contra Earl of Northesk, No 70. p. 6506.; and the casuality of marriage is not expressed in the Earl of Kincardine's charter.
In respect it was answered for Colonel Erskine, 1mo, The registration of Duncan Lindsay's disposition of the apprising to Patrick Wood within the legal, sufficiently expressed his intention never to make use of the right disponed as a real right to carry the property of the land; for payments by intromission or otherways naturally extinguish an apprising during the legal, which, till that be expired, is but a pignus prætorium; and Patrick Wood, coming in Sir John Blackadder's right by the disposition, had the same right to redeem as he had. An appriser of lands is not vassal to the superior thereof, if the apprising happen to be redeemed within the legal; for such a redemption removes all effects of the apprising retro, as if it had never been led; so that Lindsay, whose right was extinguished, or at least became only a security to Patrick Wood for the price of the redemption, could not be vassal; but the true vassal was Sir John Blackadder, against whom the apprising was led; and after him Henderson, whose apprising and infeftment thereon came into the person of the Earl of Kincardine by resignation, charter, and sasine, anno 1676. 2do, The words of the Earl's charter 1663, expressly discharge all casualities of marriage formerly fallen, and the change of the holding hindered any to fall thereafter; so that there is a difference betwixt the case of the Lord Hatton, 1672, and this, which could not pass of course, because of the change of the holding. Besides, Hatton's gift was of the marriage of my Lord Dundee, upon whose resignation, Northesk stood infeft; whereas the defender founds on a gift of the marriage of those from whom the Earl of Kincardine derived no right. And it is much easier for parties to inquire into the state of their own author's rights, than of other separate collateral conveyances. But after all, the decision 1672 was singular, and wants a precedent.
