Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Earl of Buckcleugh
v.
Robert Burnet and Others

Date: 19 January 1627

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The Earl of Buckcleugh having intented a double poinding against Mr Robert Burnet on the one part, claiming right as heir served to his own daughter begotten by him upon his wife, one of the seven daughters of William Mauld, which daughter was served one of the heirs to the said William Mauld, as representing her mother, and one of the said seven daughters; and therefore he, as her heir, who was one of the heirs of her said good-sir, claiming the seventh part of a sum adebted to the said William Mauld by the said Earl of Buckcleugh, on the one part;—and against the rest of the six daughters of the said William Mauld on the other part; who claimed the right of the said whole sum to pertain to them, seeing the right of the said whole sum was not only established by an heritable contract betwixt the said William Mauld and the said Earl of Buckcleugh, but also infeftment of an heritable annual-rent was granted therefor, out of the Earl's lands, to him in his lifetime; so that the right of that contract, and sums therein contained, being perfected by an heritable real right, and by sasine, the right thereof and of the said sums could pertain to none but to these who might be heirs to the said William Mauld, and was infeft in this annual-rent as heir to him who died infeft; and seeing neither Mr Robert Burnet's wife, who was one of the seven daughters of the said William Mauld, was infeft in her lifetime, nor her daughter was ever infeft as heir to her good-sir as representing her mother, but only served as one of his heirs by a general service, whereupon she was never infeft in her part of this annual-rent controverted,—therefore they contended that her service, so far as might concern this sum libelled, being extinct by her decease, it could not be acclaimed by her father as served general heir to his daughter, who neither was infeft, nor could be infeft therein, seeing the contract provided the same to the heirs of William Mauld, and he could never be that person who might be heir to him, but the same behoved to pertain only to the six daughters surviving, who were heirs in solidum to the whole, the other seventh and all descended of her body dying not infeft:—The Lords found, that, seeing the daughter of the seventh sister begotten by Mr Robert Burnet, was served one of the heirs of William Mauld, and that she, as one of the said heirs, had obtained the contract foresaid, made betwixt the Earl of Buckcleugh and her good-sir, registrat at her instance against the Earl; and in respect that Mr Robert Burnet was served heir to his daughter, albeit by a general service only, and that he had obtained the said contract registrat at his daughter's instance as said is, transferred in him as heir to her; albeit his daughter died not seised, yet that the right of the said sums, contained in the said contract, both principal and byruns, pertained to the said Mr Robert Burnet; and that the same did not so belong to the other six sisters, as that it could not be sought but by them who was infeft;—and therefore in respect of the said Mr Robert Burnet's retour as heir to his daughter, and of his decreet of transferring, and of his daughter's retour and decreet of registration,— which retours and decreets, the Lords found, could not evanish and become extinct,—they decerned the said Mr Robert to be answered and obeyed, and discharged the other six sisters, as having no right to the said seventh part; and found that the renunciation to be given by the said Mr Robert to the Earl of Buckcleugh should be a sufficient security to exoner and warrant him of the payment thereof.

Act. Scot. Burnet, per se, and Stuart. Alt. Lermonth; Aiton and Oliphant, per se. Scot, Clerk.

Page 257.