Rights and powers of an apparent heir, as to removing tenants, uplifting rents, selling the predecessor's estate, &c. - - To whom rents unuplifted during apparency belong.
Executors qua nearest of kin to Dougal Campbell, v. Alexander Campbell of Skirven
1743.
July. Case No. No 17.
The rents of an entailed estate fallen due, but unuplifted at the death of a substitute, were found to belong to the executors of his son, who died apparent heir of entail; and not to the next substitute.
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Anno 1728, Dougal Campbell of Skirven, by his bond of tailzie, obliged himself to resign his estate in favour of Archibald Campbell in liferent, and to Dougal the eldest son of Archibald, &c.; which failing, to Alexander Campbell.
Anno 1737, by another bond of tailzie, the said Archibald obliged himself to resign the estate to himself in liferent, and to Dougal his son, &c.; which failing, to the said Alexander Campbell.
After the death of Dougal Campbell elder, and Archibald his son, the estate
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devolved on Dougal, the son of Archibald, who dying likewise in February 1737, the same devolved on the said Alexander Campbell, against whom the sisters of Dougal Campbell younger, as executors qua nearest of kin to him, brought an action for payment of the half of the year's rent crop 1737, which he had intromitted with, as being in bonis of their brother, and so falling under his executry.
The defence offered for Alexander Campbell was, That Dougal younger, having died an infant, without making up any titles in his person to the estate, the same was never vested in his person; and that, however his apparency, or the personal right that was in him, might have been a lawful title of possession, had he actually apprehended the same, and uplifted the rents; yet as, in fact, he uplifted none, the rents were in medio at his death, and of course belonged to the defender, the next substitute, who came immediately to have the same title of interim possession that Dougal younger might have used; and who, upon completing his title, and executing the procuratory of resignation, will become the immediate successor to the person last infeft, and granter of the procuratory.
In a word, the principle on which the defence is founded, is, that the imperfect right of an apparent heir can go no further than to make those rents become his which he had actually uplifted; and that he was by no means to be considered as in the same state with a person vested in the fee, whose executors are no doubt entitled to take the rents that were due and payable, at or before the legal term immediately preceding his death.
And if the law so stand with respect to Dougal Campbell younger his title to these rents as apparent heir of the former investiture, the defender is advised that his other title is no better, or more complete, which consists of the personal rights above recited, by the procuratories of resignation in Dougal's favours made by his father and grandfather, with design to vest the fee in him by way of purchase or conyeyance: For still it is true, that the feudal right to the lands remained with the person last infeft in the lands, granter of such procuratory; and that the estate and rents thereof, arising from his death, are still as fructus pendentes in hæreditate jacente of him who was last infeft in the lands, and will therefore be carried by the defender, whenever he, by executing the procuratory, shall connect his title by infeftment with the last vassal who so died infeft, and who granted this procuratory to himself in liferent, and to Dougal, and the heirs substitute to him, in fee. See Ross against his Tenants, No 10. p. 5243.; M'Brair against Rome, No 13. p. 5245.; M'Brair against Rome, No 13. p. 5246.; Balgony against Hay, No 15. p. 5247.; and Oliphant against his Tenants, No 11. p. 5243.
The Lords found, That the pursuers have right to the half of the year's rent libelled, and preferred them, &c. they always confirming before payment.
N. B. It is said this judgment was founded on this, that Dougal Campbell was fiar of the estate. See No 16. p. 5213.
