Act 58th, Parliament 1641. - Whether the Superior can renounce his Casualties. - Paction contrary to the nature of Feu-rights.
Neil Macvicar, v. Cochran of Hill and Ker of Crummock
Date: 10 February 1749 Case No. No 9.
Clause in a vassal's charter, exempting from legal irritancies, makes part of his real right.
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Alexander Crawfurd of Fergushill, feued out to James Cochran, the lands of Hill for a duty of L. 24 Scots, and relieving him of the teind and dry multure payable out thereof; disponing to him “all and sundry the casualties of the said lands, that might fall or become in the hands of the superiors thereof, either as liferent-escheat, non-entry, or by contingency of not timeous payment of the feu-duties thereof, by and through the said James and his heirs and successors, being put to the horn the space of year and day, or through the heirs of the said James, or his foresaids, lying out unentered to the samen, after the death of their predecessors, or by not timeous payment of the said feu-duty.”
Dr Thomas Crawfurd of Fergushill, sold these lands to Neil Macvicar, writer in Edinburgh; “assigning him to all feu-rights or contracts, redeemable or irredeemable, past betwixt him, his authors and predecessors, and James Cochran; and to the hail reddendos of the said rights, with the hail clauses, obligements and conditions therein mentioned, conceived in favour of him, his authors and predecessors, concerning the superiority and property of the said lands.”
Neil Macvicar pursued James Cochran, and James Ker of Crummock, his real creditor upon the lands, in a declarator of tinsel of the feu, ob non solutum canonem; who defended themselves on the quality of their right: And the Lord Ordinary, 21st July 1748, ‘repelled the defence.’
Pleaded in a reclaiming bill; The irritancy sought to be declared, is no natural consequence of superiority; it is no part of the feudal law, and was only introduced into ours by statute 1597, “in the same manner as if a clause irritant were ingrost in infeftments of feu farm;” It cannot be doubted that it might be stipulated, a failure for ten years should be necessary in order to irritate the right; and the irritancy may as well be effectually discharged. Clauses of this nature in a feu-charter were found effectual, 9th November 1748, Nasmith of Ravenscraig against Storie of Braco, voce Homologation; in which indeed, it was pleaded, that the successor in the superiority was expressly burdened with the feu-right; but the general point was also argued; and the present case is similar in the specialty, the feu-contract with Cochran being assigned.
Answered; A feu cannot be so constituted as to be contrary to law, and subsist to the prejudice of a successor in the superiority. By the nature of feu-holdings, an irritancy is incurred by failing to pay the duty; and, it is no matter that this irritancy is peculiar to this country, and introduced by statute, as the feudal law is local. A feu cannot subsist without a duty; and it might as well be pleaded, that a duty might be constituted, but that it might be stipulated, there should ly no action of poinding the ground for recovery thereof. This case is not similar to that of Ravenscraig and Braco, where the superior's right was burdened with the feu-contract; but here, the contracts are assigned to the purchaser, in so far as conceived in the superior's favour.
The Lords found the clause in the defender's charter and sasine, exeeming him from the legal irritancy, ob non solutum canonem, was real, and therefore sustained the defence.
Act. Lockhart.Alt. Miller.Clerk, Murray.
Fol. Dic. v. 3. p. 206. D. Falconer, v. 2. No 53. p. 51.
