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Scottish Court of Session Decisions >>
Johnston v Tenants of Achincorse. [1665] Mor 15042 (22 July 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor3415042-051.html Cite as:
[1665] Mor 15042
Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. XI.
Composition due by Singular Successors.
Johnston v. Tenants of Achincorse
Date: 22 July 1665 Case No. No. 51.
Found that an appriser must pay an year's duty if he insist for possession, though not infeft.
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Johnston having apprised the lands of Achincorse, and charged the Lord Dumfries, his superior, to receive him, pursues the tenants thereof for mails and duties. Compearance is made for the Lord Dumfries, superior, who alledged no process, till a year's rent were paid to him, as superior. 2dly, It is offered to be proved, that Achincorse the vassal was in non-entry, or the life-rent escheat fallen by his rebellion, and therefore the superior ought to be preferred. The pursuer answered to the first, that seeing it was the superior's fault, he received not him upon the charge, albeit he offered to receive him now, he could not have a year's rent, till the pursuer insisted to be infeft. To the second, the defender ought to be repelled, seeing there was no declarator intented. The defence answered, that seeing he was to change his vassal, and the appriser sought possession before he had access, he behoved to pay the year's rent, seeing by the apprising, and the charge, the superior will be excluded from his casualities. To the second, the superior being acknowledged by the charge, he might crave the casualities of the superiority, by way of competition, and offered to produce the horning, cum processu.
The Lords sustained the first defence, but not the second, seeing there was no horning produced, nor declarator intented.
