Obligation to relieve and purge from Incumbrances.
Andrew Majoribanks of that Ilk, v. Nisbet of Dirleton
Date: 22 February 1715 Case No. No 25.
Although incumbrances remained undischarged, which the seller had stipulated to discharge, yet the price was, in this case, ordered to be paid, upon, absolute war randice, and caution, to subsist for ten years to relieve of the subsisting burdens on the lands.
The long prescription had run.
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Majoribanks, as having right by progress from Woodcockdale to 3000 merks, contained in a bond granted to him by Sir John Nisbet of Dirleton in anno 1676, and 604 merks contained in a decreet of furthcoming in anno 1685, insists against the now Dirleton on the passive titles for payment.
Alleged for the defender, That he could not be liable for the principal sums but in the terms of the Lord Dirleton's bond, whereof the term of payment is not yet come, the principal sums being only payable at the first term of Candlemas or Lammas, after the lands of Fentonbarns and others disponed by Williarn Couper to him, should be purged, disburdened, freed, and relieved of the infeftments of annualrent of 500 merks yearly, disponed out of the same to David M'Culloch of Good-trees.
Answered for the pursuer; That the incumbrance is sufficiently purged, in so far as the irifeftment being granted in anno 1623, the same is now long prescribed; 2do Dirleton hath been now hear forty years in possession of the lands, since his author purchased the same; so that he is secured by the positive prescription, he and his author having possessed without interruption or distress.
Replied for the defender, That the prescription is not Dirleton's concern to debate, that being the business of M'Culloch's heirs, who cannot be concluded by any debate betwixt Majoribanks and Dirleton; and if this pretence had been enough, Sir John Nisbet heeded not have detained a sum in his hands, effeiring to the infeftment of annualrent, it being prescribed even at the time of granting the bond.
Duplied for the pursuer; That the prescription was not jus tertii to Dirleton; for he having founded his defence on M'Culloch's right, wllatever was competent to remove him, was also competent against the defender. Nor was there, any need to raise a declarator of extinction against M'Culloch's heirs, becausel prescription had as effectually extinguished the annualtent, as if it had been actually renounced.
The Lords found the defender ought to pay the sums libelled, the pursuer giving a discharge with absolute warrandice, and finding caution to relieve the defender of the infeftment of annualrent; which caution is to subsit for ten years (in case there be no distress within that time) from the date of payment.
Act. Messie.Alt. Bennet.Clerk, Sir James Justice.
Fol Dic. v. 2. p. 359. Bruce, v. 1. No 91. p. 108.
