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Scottish Court of Session Decisions >>
Balfour v Balfour. [1569] Mor 7855 (17 March 1569)
URL: http://www.bailii.org/scot/cases/ScotCS/1569/Mor1907855-009.html Cite as:
[1569] Mor 7855
Grants from the Crown. - Annexed Property. - Power of granting Jurisdictions. - Power of Revocation.
Balfour v. Balfour
Date: 17 March 1569 Case No. No 9.
Lands being feued by the King, with a clause irritant, in case of alienation, a simple writ from the King, empowering the feuer to alienate, not having the comptroller's consent, nor having past the seals, was found no sufficient warrant to alienate.
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Anent the action of reduction pursued by David Balfour younger, against David Balfour elder, his father, for reduction of a charter of certain lands, set in feu farm, by the King's grace, to the said defender, with a clause contained in the charter; it was alleged by the donatar to the King's grace, That the charter made to the defender should be reduced; because it was contained in the said charter, that if the said defender annalzied, or put away, any of the said lands, or any part thereof, without consent, the said charter should be of no force nor effect, but null in itself, and redeemable. It was alleged by the said defender, That he had made no alienation of the said lands, nor no part thereof, and therefore his charter should not be reduced. It was alleged by the said pursuer, That albeit the said defender had not annalzied any part of the said lands, yet he had annalzied so meikle annualrent forth of the said lands, which annualrent was almost the whole profit of the said lands, which is alike as if he had annalzied the whole lands; which allegeance of the said pursuer was found relevant. And also it was alleged by the said defender, that albeit he had annalzied the said annualrents, as is alleged, the charter should not be reduced, because he had obtained licence of the Queen to do the same; and, for probation thereof, produced a writing in paper, subscribed by the Queen. It was alleged by the pursuer, That that writing should have no faith nor strength of a licence, because the lands contained in the charter of the defender were of the King's property, and set in feu, with consent of the comptroller; and therefore the Queen, without consent of the comptroller, might not dissolve the clause irritant, because it was hurtful to the Crown; and also, because it was a simple writing, subscribed by the Queen, and not past the seals, which allegeance was admitted by the Lords for both the causes foresaid, alleged by the pursuer.
