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Scottish Court of Session Decisions >>
E. Melross v Ker. [1623] Mor 3677 (25 November 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor0903677-002.html Cite as:
[1623] Mor 3677
Contracts of excambion are real burdens, and preferable to any real rights acquired to the lands preceding the eviction.
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Where parties excamb lands, either of these lands, hinc inde excambed, remains really affected to return to the party from whom the lands, received in permutation are evicted, conform to the proportion of the eviction, in which the party distrest hath recourse to his own lands given in excambion for the other pro tanto; in which recourse he is preferred to all other persons who have either comprised the lands, and thereupon are infeft therein, or who have acquired any other real right thereof from him, who received the same in excambion, albeit these rights precede the eviction from the other party who exchanged; and this follows of its own nature in contracts of excambion, which of themselves are real, albeit that no other real security provided such recourse to the parties, but the first contract bearing the excambion, which, to produce that effect, are not respected as personal securities, but are real, as said is, and give the right of the prelation to the excambers, before all other parties thereafter acquiring right to these lands from any of the parties. This was so found in this process, albeit the charter and sasine which followed in that matter, upon the contract of excambion, be an express clause provided to either party, their recourse in case of eviction; yet the Lords were all of that mind, that albeit there had been no more but the contract, it would have produced the same effect without the said clause.
