Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Bavielaw
Creditors of Kersland

Date: 26 June 1741

Click here to view a pdf copy of this documet : PDF Copy

[Elch., No. 6, Ranking and Sale.]

Kersland, though he had no right to his teinds, feued out some of his lands for a joint duty, payable for stock and teind. Afterwards the teinds came to be evicted by the titular. The question was, What part of the feu-duty the feuars could retain from a singular successor, into whose hands the superiority had come? whether a proportionable part, e. g. if a fifth part of the rent of the feu was evicted for the teind, then the feuar might deduce the fifth part of the feu-duty ? or whether he could retain the whole value of the eviction, to the utmost extent of the feu-duty, for beyond that he could not have relief from a singular successor ?

The Lords found,—That the feuar could retain the whole value of the eviction as far as the feu-duty would go ; because, by the feudal contract, the obligation of the reddendo was only conditional, if the vassal enjoyed the land ; and, therefore, the payment of the feu-duty was necessarily burthened with the eviction of the subject.

N.B. It was supposed here, that, if the feuars had completed the forty years' prescription, they would have been safe against the titular, who only could have had recourse against the superior and affected the feu-duty.