Competition betwixt the Heirs v. Executors of Sir James Rochead
Date: 6 November 1739 Case No. No. 55.
Quando dies cedit of annual-rents of heritable bonds?
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In a competition betwixt the heir and executor, with regard to bygone annual-rents due upon heritable bonds, secured by infeftment, which the executor claimed down to the day of the predecessor's death, as due de die in diem, the Lords found, That where the annual-rents, by conception of the bond, were made payable at Whitsunday and Martinmas, the same did belong to the heir from the term preceding the predecessor's decease, which in the present case was Martinmas, the predecessor having died 1st May; but they found, That where the conventional terms of paying the annual-rents were Lambmas and Candlemas, the annual-rent due at Candlemas before the predecessor's decease did belong to his executors. The foundation of which last opinion was, That where it is said that the legal, and not the conventional terms, are the rule betwixt heir and executor, the meaning is, that the postponing the legal term by the convention of parties does not deprive the executor of the benefit of the legal term, dies cedit etsi non venit; but if, by the convention of parties, the fruits be payable before the legal term, the executor must have the benefit, because there dies et cedit et venit; and the case would be the same in a forehand payment of rents of lands.
Fol. Dic. v. 2. p. 458.
*** This case is reported by Kilkerran, No. 44. p. 15906.
