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Scottish Court of Session Decisions >>
Lo. Lovit v L. Philorth. [1626] Mor 296 (25 July 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor0100296-004.html Cite as:
[1626] Mor 296
Subject_1 ADJUDICATION and APPRISING. Subject_2 EXTINCTION of APPRISINGS and ADJUDICATIONS.
Lo Lovit v. L Philorth.
Date: 25 July 1626 Case No. No 4.
The same found. No action of declarator is necessary, notwithstanding of infeftment and possession.
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In a removing, pursued at the instance of the Lord Lovit, who was infeft upon the resignation of the L. Pitsligo in the lands of Philorth; which Laird Pitsligo had comprised, the said lands from umquhile Sir Alexander Frazer of Philorth, against Alexander Frazer, son to the said Sir Alexander, who compearing, alleged, That he nor his tenants ought not to remove from the said comprised lands libelled, because the sums whereupon the comprising was deduced were paid to the pursuer, by the said umquhile Sir Alexander; at the least, the pursuer had accepted from him lands, in full satisfaction of the same comprising.— And it being replied for the pursuer, That the said exception could not be found relevant to stay this removing, in respect the said comprising and securities, and infeftments following thereon, were neither renounced nor redeemed, and the same being standing, could not be so summarly taken away, by way of exception; but the farthest that the same might work, (albeit it were true) were only to produce action thereupon against the pursuer, seeing the comprising once led, denuded the Excipient's father of his right, to which he can never come again, except the defender first lawfully removed that impediment of the comprising, whereby himself might be infeft in the lands.———The Lords found the exception relevant, notwithstanding of the reply; for the Lords found it against reason, that the pursuer should both receive payment of the sums, for the which the lands were comprised, or satisfaction for these sums, and also the lands comprised, and so bruik both; but that he being so satisfied, as the exception bears, the comprising should cease.
