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Scottish Court of Session Decisions >>
James Archibald v Thomson. [1698] 4 Brn 422 (25 November 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Brn040422-0840.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
James Archibald v. Thomson
Date: 25 November 1698
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Phesdo reported James Archibald, portioner of Balbrekie, against Thomson. Having married two sisters, heirs-portioners, they divided the lands equally; but James Archibald having a latent infeftment of annualrent, which he had long before this agreement acquired, he dispones it to his son, who, pursuing a poinding of the ground against Thomson's half, he raises a reduction and declarator that the same is extinct, or must accresce to him, being in Archibald's person at the time of the transaction.
Answered,—Offers to prove, by the communers and witnesses, that it was neither actum nor tractatum to be conveyed.
Replied,—It was unknown to him, and concealed by his good-brother, and so could not be the subject of a communing.
The Lords considered there was evident fraud in keeping up this right: and when Archibald disponed the property of the half to Thomson, that carried the lesser right and servitude of the annualrent, as has been oft decided; in majore continetur jus minus; therefore they ordained him to communicate the right, seeing jus authoris accrescit successori.
