Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. II.
What esteemed Fructus Percepti.
Dick of Grange v. James Cook
Date: 15 June 1748 Case No. No 7.
A superior who had possessed on a decree of non-entry afterwards reduced, found accountable only for actual intromissions, not by rental; and the rents received were found to impute in payment of feu-duties bygone and in time coming.
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Dick of Grange feued an acre of ground to William Brown, who having built some houses upon it, disponed it, 9th June 1702, to Charles his son, with procuratory and precept, on the last whereof he was infeft, under the burden of 500 merks to the disponer's daughter Anne, and L. 289 Scots due to Robert Cook: And Charles, of the date of the disposition, granted bond to his sister for her portion, who inhibited him thereon 19th November 1703.
William Brown died 1722, and his son Charles having left the country, the feu-duties fell into arrear, whereupon William Dick, now of Grange, obtained a decree of non-entry against him, 19th December 1731, calling therein James Cook the son of Robert, who possest one of the houses, whose interest is to be further noticed, and three tenants; omitting some others. He afterwards obtained a Special declarator, 2d February 1732, and begun to uplift the rents; wherein, as he alleged, he was much impeded by James Cook, who 1736 protested against his repairing one of the houses, claiming the subject as his property, and continually pulling off the tickets put upon them for setting.
Grange served Cook with a precept of warning, and pursuing a removing, compearance was made for Janet Oswald to defend him as her tenant, she having adjudged from Charles Brown, on these grounds, That Anna Brown, 12th February 1717, assigned her debt to James Renton, who having acquired a title, to be after noticed, to the land and houses, restricted the same, 20th May 1724, to a security for the said 400 merks, for which he declared the subject should be redeemable from him by the granter; after which he disponed it, 27th June 1725, to the said Janet Oswald his wife, who adjudged for the said 400 merks, and charged Grange as superior, 29th June 1727, to infeft her; and took a decree of mails and duties 3d November 1729; and 21st July 1731, disponed her right to James Cook; so that the appearance in her name was made in his behalf.
Charles Brown had, 8th February 1709, disponed the subject to David Burd, under the burden of Anna Brown and Robert Cook's debts, who was infeft base, and disponed the one half, 17th September 1709, to Robert Cook; and, with consent of Cook, 24th February 1710, disponed the half to James and John, sons of the said Robert, who were infeft 26th February 1724.
Burd had also, 12th March 1717, disponed the land and houses to James Renton, who had paid Anna Brown's debt; declaring it should be optional to him to restrict this disposition to a security for the said debt; and this was the title above-mentioned, whereon Janet Oswald's adjudication, acquired by Cook, proceeded; who at the same time had in his own person right to a quarter of the subject, by progress, as is said, from Charles Brown; and was now served heir to his brother 7th August 1745, as he was to his father 3d January 1730, on which titles he claimed right to the whole, alleging the half disponed by Burd to his brother, and him, not to be the same disponed to their father.
The cause resolved into a competition for the mails and duties, on the titles of the decreet of non-entry and the adjudication, both which were objected to: And the Lord Ordinary, 13th January 1737, ‘preferred Grange for payment of his bygone feu-duties and reparations, and for payment of his feu-duty in time coming, and ordained him to give in an account of charge and discharge; and, 22d June, found him liable to account by a rental.’
Cook had, 27th January 1739, offered a charter to be signed by the superior, which was objected to; the Lord Ordinary, 27th January 1740, ‘found the decreet of declarator at Grange's instance void and null, and assoilzied James Cook from the removing as to the house possest by him, in respect of his right of property to one-fourth part of the subject; and found the free rents intromitted with by Grange behoved to impute in payment pro tanto of his current and bygone feu-duties, and ordained him to give in an account of charge and discharge, conform to the rental in the special declarator.’ And, 12th November 1747, ‘In respect of the charge given to the said William Dick as superior, and the subsequent tender made to him of a charter of adjudication to be subscribed by him, and sufficient security for what should be found due for entering the adjudger, found that the said William Dick could not now, so long after the said charge, and also after the said tender, redeem the said adjudication, especially considering James Cook, who had now right to the said adjudication, and for whom the said tender was made, stood also infeft base in the property of at lead a half of the subject contained in the said adjudication; found that the said William Dick of Grange was accountable for the rents of the said tenements before his decreet of general declarator, and his entering into possession in pursuance thereof, only in so far as it was or should be proven that he intromitted therewith; but, from the time of his entering into possession upon the said decreet, found that he ought to have used diligence, and therefore ought now to account by a rental, so far as to satisfy his current and bygone feu-duties; but, after satisfying these, found him accountable only for his actual intromissions, until the interlocutor reducing his decreets of declarator, and preferring to the mails and duties for payment of his feu-duties bygone and in time coming, and of the expences and reparations made by him, dated 13th January 1739, and 15th November 1740: But, in respect that the said William Dick was then in the actual possession of the subject, by setting tacks, or uplifting rents, excepting a small house possessed by the said James Cook, therefore found the said William Dick liable to account for the rents from 15th November 1740 by a rental, unless he should prove that he was obstructed by the said James Cook from levying the rents.’
Pleaded in a reclaiming bill, That Grange could not be obliged to account to Cook, who had no right to the subject; for the adjudication was led after Charles Brown was divested, upon a bond which was not in the person of the adjudger, her husband never having disponed it to her, but only the disposition in security by Burd to him. But supposing the adjudication a good right, the superior was entitled to redeem, and for that purpose to bring the adjudger to account, which he offered, and was still willing to do: Neither could he be barred by expiration of the legal, as this privilege was competent before legals were introduced, Stat. Alex. II. and the adjudger had it in his power to delay his offer of a charter till the legal was expired, which would elude the privilege if it were not then competent. The charge given could not interpel him to declare his option, being given for another purpose; to wit, to make the adjudication effectual in a competition: And besides, Grange could not be properly charged on an adjudication against Charles Brown, who was not his vassal, but held of William his father; and when the charter was at last offered, he was not obliged to sign it till the event of the competition, and it was improperly conceived, as if Charles had held of Grange, whereas it ought to have been a charter of resignation on William's procuratory.
He ought not to be accountable for a rental, in respect he possest by a title which was unaccountable, though now reduced, and therefore he ought not to be liable for omissions.
Answered, That Janet Oswald's title was Anna Brown's bond conveyed to her husband, and by him to her, and the adjudication was properly led against Charles Brown, who had been inhibited before he was denuded: That the superior had no option, if the adjudger was willing to pay him a year's rent, act 36. Parl. 1469, since which time the sanction of the statute of K. Alexander II. had been superseded; but supposing him to have had this option, he ought to have declared it on his being charged soon after the adjudication; for the plain intent of the charge was for an entry, though it had also the other effect mentioned: And no damage could arise to the superior, if the charge should be delayed, as he was obliged to know of the abbreviate on record, which was therefore contended to be a sufficient interpellation: The tender of a charter was used to prevent the effect of non-entry, and the charter offered proper, for Charles could not on his father's death be vassal to himself: Grange might have confirmed his base infeftment; and if there was any defect in the stile, it might have been mended.
Observed, That Grange was bona fide possessor, and not accountable for the rents, further than to apply them to his own claims of duties and reparations, for so far a bona fide possessor was accountable; and also that his decreet had been opened on a slender nullity, to wit, that the process falling asleep, had been wakened, and the former Ordinary being dead, the wakening enrolled before a new one; whereas there ought to have been a petition for an Ordinary in place of the former, and the wakening produced before him.
The Lords found, that the petitioner not being superior to Charles Brown, the person against whom the adjudication was led, could not be charged upon the said adjudication, neither had he title to redeem the same; and sound that he was not obliged to account by a rental from the time of his obtaining decreet of declarator, nor even after the interlocutor preferring him to the mails and duties, for payment of his feu-duties bygone and in time coming, but was only accountable for his actual intromissions.
For Grange, Hay.Alt. A. Macdouall.Clerk, Kirkpatrick.
Fol. Dic. v. 2. p. 94. D. Falconer, v. 1. No 258. p. 348.
