Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

The Heirs of Newtown-Johnstone
v.
Johnston of Corehead

Date: 22 November 1716

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The estate of Newtown being under sequestration, and Newtown himself bankrupt, a declarator of non-entry is pursued by Johnston of Corehead, the superior: whose grandfather, sixty-six years ago, obtained charter and precept of seisine under the great seal, upon the resignation of the then proprietor ; but no infeftment followed thereon till the year 1714, when the present Corehead was infeft in the terms of the Act of Parliament 1693, allowing such infeftments, even mortuo mandante. No compearance being made for the common debtor, the real creditors, though not called, compeared: and the Lords, after hearing parties, having inclined last July to decern for the full rents from the time of the citation, and having repelled all their objections against the superior's title ; they now, in a reclaiming petition, Allege, That the non-entry ought to be restricted to the retoured duties, to the date of the Lords' last interlocutor, sustaining the pursuer's title : and this because processes of non-entry for the full duties being penal and unfavourable, therefore, where there is but any doubtfulness in the pursuer's title, the Lords use to restrict the effect of the declarator to the retoured duties till the title be sustained. And that there was great ground to doubt in the present case, appeared, 1mo. That in this process neither the real creditors nor factor were called ; 2do. The right itself (though now sustained by the Lords,) was very doubtful whether valid or not; it being apparently prescribed, since no infeftment was taken, and is sixty-six years after its date; 3tio. The act 1693, seems only to relate to precepts granted by subjects ; but the King cannot die.

Answered for the pursuer.—That it is a known principle, that the full duties are due from the citation in the declarator : nor is this odious, since it is inherent in the nature of all fees. And this the Lords found, the 25th July, 1666, Harper against his Vassals, and 12th June, 1673, Faa against the Lord Balmerino and Pourie: nay this the Lords found, in the case of the Earl of Argyle against M'Leod, though there the non-entry arose from the reduction of a retour, and so the defender had much stronger pretensions to a bona fides till the sentence in the reduction than here the defenders can pretend to. 2do, Since here the common debtor's representative makes no objections against the pursuer's title, (neither can he without disclamation,) so the creditors can make none, except in the right of the said apparent heir; and consequently it was in vain for them, whom the superior is not bound to notice, to pretend to any other ground of bona fides, except such as would have been competent to the apparent heir himself. In short, the casualty does not arise from theirs, but the heir's non-entry; and therefore no bona fides can defend against it, but his alone by whom it falls. And therefore, 3tio, Since Newtown could not mistake his superior, or be in bona fide to quarrel his right, neither can the creditors. Besides, that the creditors being real by infeftment, how could they be so without knowing the condition of their author's right, (who infeft them,) and consequently who was his superior ? since unusquisque scire debet conditionem ejus cum quo contrahit. And as to precedents and the Lords' practice, the pretence to bona fides and dubiety was sustained only in case of a singular successor to the superiority, but never where there was no change of the superior. 4to, It is scarce possible to find out habile circumstances for finding such a pretext.

The Lords found the creditors liable for the full rents, from the time that their objections against the pursuer's title were repelled.

Act. Ro. Dundass. Alt. Ila. M'Kenzie Clerk.

Vol. II. No. 36. page 46.