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Scottish Court of Session Decisions >>
Wedderburn v Nisbet. [1612] Mor 6322 (14 February 1612)
URL: http://www.bailii.org/scot/cases/ScotCS/1612/Mor1506322-021.html Cite as:
[1612] Mor 6322
Subject_1 IMPLIED ASSIGNATION. Subject_2 SECT. III.
Conveyance of Superiority, does it carry casualties already fallen?
Wedderburn v. Nisbet
Date: 14 February 1612 Case No. No 21.
A singular successor in the superiority cannot challenge the feu propter non solutum canonem of any years in his author's lifetime, but only since the conquest of his own right.
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A feu being sought to be reduced by the Laird of Wedderburn, against Nisbet of Swansfield, the Lords found that he could not quarrel the feu propter non solutum canonem of any years in the pursuer's author's time, but only for the time of his conquest of his own right; that payment of three years together in an acquittance, inferred presumed liberation of the duties of all preceding years; that payment made to a Baron's chamberlain or factor, who was in use to uplift all his master's rents of the barony, and his acquittance given thereupon was sufficient to the vassal, and that factor's acquittance of three terms would save the vassal from danger of the clause irritant; that the superior's precept of clare constat given to the feuer voluntarily, relieved him of the danger of preceding years; and that the heir of the vassal being minor, and seeking entry to his lands by his superior, if at his lord's command, he delivered his predecessor's charter to any notary or writer being the superior's servant, to form to him a precept of clare constat, so long as that notary kept the minor's charter, and expede not his precept, the vassal could not forfeit his feu for not payment of the duty of these years; because the retaining from him of his charter, put him in probabili ignorantia of the feu-duty addebted by him and of the clause irritant; especially if he, recovering his charter, made real offer of all feu-duties owing before the day of compearance in the cause of reduction.
