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Earl of Nithsdale v Duke and Duchess of Buccleugh. [1684] Mor 545 (26 February 1684)
URL: http://www.bailii.org/scot/cases/ScotCS/1684/Mor0200545-086.html Cite as:
[1684] Mor 545
Subject_1 ANNUALRENT. Subject_2 ANNUALRENT due by those who are lucrati, as having had the use of money belonging to others.
Earl of Nithsdale v. Duke and Duchess of Buccleugh
Date: 26 February 1684 Case No. No 86.
Found, that though a minute of sale of lands mentioned no annualrent, interest was due from the date, ex natura rei.
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In the cause betwixt the Earl of Nithsdale and the Duke and Duchess of Buccleugh, reported by Kemnay; “The Lords found, though the minute of sale of the lands mentioned no annualrent, yet the price behoved to bear annualrent from the date of the minute, ex natura rei, without paction; though it was offered to be proven, that they were in possession of the lands, disponed by the minute, many years before the lame, by virtue of the wadsets and other rights, and so did not attain the possession by the minute; and though it was never perfected: But the Lords ordained the securities yet to be perfected, and the price detained, till incumbrances be purged.” See the like decided in Stair, 28th January 1663. Balnagoun, No 85. p. 545.
December 24. 1685. The Earl pursuing for the price of the barony of Langholm, (which was found supra, 26th February 1684, to bear annualrent,) conform to the minute: It was alleged, they could not pay till the incumbrances were purged.—Answered, They needed not, because they were aliunde secured, viz. by wadsets and expired comprisings, and forty years prescription.——Replied, That was no sufficient ground whereon to pay a price, seeing there might be latent orders of redemption and interruptions.———The Lords found, That the defender condescending upon incumbrances by a note under the hand of the Keeper of the Register, they ought to be purged, reserving contra producenda.
The Lords farther considered the cause on the 29th of January, and whether the special adjudication led by Nithsdale against himself, in Monmouth's name, for implement of the minute be a sufficient security. The Duchess's Procurators gave in a declinator against the Chancellor and Treasurer, as being brothers-in-law to the Countess of Nithsdale. And, on the 4th of February, they found the note of incumbrances under the Keeper of the Register's hand sufficient, and that the special adjudication wanting a procuratory from the Duchess to lead it was no valid right; though the minute is a tacit procuratory and mandate; and recommended to three of their number to settle the parties. (See Redemption.)
Fol. Dic. v. 1. p. 42. Fount. v. 1. p. 272. & 387.
