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Dumbar v Williamson. [1627] Mor 570 (23 November 1627)
URL: http://www.bailii.org/scot/cases/ScotCS/1627/Mor0200570-009.html Cite as:
[1627] Mor 570
Subject_1 ANNUALRENT, INFEFTMENT OF. Subject_2 In what manner an Annualrent-Right may be Extinguished.
Dumbar v. Williamson
Date: 23 November 1627 Case No. No 9.
A renunciation, found not sufficient to extinguish an annualrent right, established by charter and sasine, in prejudice of a singular successor, thereafter acquiring right from the annualrenter.
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In an action of poinding of the ground betwixt Dumbar and Williamson, wherein personal execution was concluded against the granter of the infeftment of the annualrent, for the which action was intented, as well as real against the ground:——The Lords sustained action against the granter of the infeftment for payment, personali actione, as was desired, as well as for the real, by poinding of the ground; notwithstanding that the pursuer was infeft only in the said annualrent, not by him who was conveened personally for payment, but by one Williamson her husband, who was infeft therein by the defender.:——The Lords found this personal action also competent to the successor, who was infeft by him, who first acquired right from the heritor of the land, now defender, as it would have been competent to the said first acquirer himself, against him, which was so found, albeit the said pursuer, singular successor to the said first acquirer, as said is, was not made assignee to the personal contract, concerning the alienation of the said annualrent, made betwixt the heritor and the annualrenter; but that the pursuer was only infeft therein by the said first annualrenter.——In this process the Lords also found, upon the 11th of December 1627, That the renunciation made by the husband, who was first infeft before this sasine given to his wife, now pursuer, made in favours of the defender, disponer of the annualrent, was not habilis modus, to denude the husband, and to prejudge this right, thereafter acquired by the wife, except it had been resigned or disponed by charter and sasine, seeing it was first established by sasine: And also found, That the pursuer might lawfully pursue personal action against the said first disponer, as well as real against the ground, notwithstanding the said renunciation, made before the the pursuer's right.—For which See 27th July 1626, L. Anstruther against Black, Durie, p. 230. voce Assignation. (See Implied Condition.)
Act. ——.Alt. Cunningham.Clerk, Gibson.
Fol. Dic. v. 1. p. 46. Durie, p. 315.
