Scottish Court of Session Decisions

Subject_1 LITIGIOUS.
Subject_2 DIVISION III.

Litigious by Denunciation on a Horning.
Subject_3 SECT. I.

Debt contracted after Denunciation. - Alienation after Denunciation.

Thomas Lindsay
v.
Porteous & Lo Yester.

Date: 23 January 1627
Case No. No 36.

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One being denounced at the King's Horn cannot make disposition of anything currente rebellione, in prejudice of his superior or his donatar, if he happen to remain year and day rebel; no, not to any of his lawful creditors.

Fol. Dic. v. 1. p. 554. Spottiswood, (Hornings.) p. 148. *** Durie reports this case.

In a special declarator, at the instance of James Wallace, donatar to the liferent of Thomas Porteous of Foord, who held the said lands of Foord of the Lord Yester, against the said Thomas, for payment to the pursuer of the mails and duties of the said lands, since the time that the said defender was year and day rebel; compeared in this process Thomas Lindsay, burgess of Edinburgh, and produced for his interest a charter and sasine of the said lands, granted to him by Thomas Porteous, with a declarator, recovered at his instance against the defender, whereby the tack, which was set by the said Thomas Lindsay to the said defender of the said lands, at the time of the purchasing of the said heritable right from the defender, was declared to be expired, for not payment of the tack-duty, conform to an irritant clause therein contained; in respect of the which right and possession of the lands really held by the said Thomas Lindsay, and which were purchased by him for a preceding cause, a just and true debt owing to him by the defender, and which he sicklike instantly instructed, for the satisfaction whereof he had acquired the right of the said lands, and possession conform thereto, therefore, he alleged, That the farms and duties of the said lands pertained to him, and ought not to be found to pertain to this donatar, in respect of the time of the acquiring of the said heritable right; and albeit the defender his author was then rebel, yet he was not then year and day rebel, whereby his liferent might fall to the superior; but it was then lawful to him to acquire a disposition of the heritable right of the lands from him, which he really did by charter, and sasine, and possession; and his subsequent rebellion, by his remaining year and day at the horn, ought not to be prejudicial to his said right, being made for a cause of debt owing to him, preceding the time that he was denounced at the horn. This allegeance was repelled, and the donatar of the liferent was preferred to the excipient; for the Lords found, that the vassal being put to the horn, before the alienation, after that rebellion, (year and day being expired, and the vassal not relaxed,) he could do nothing to prejudge the superior in the liferent which was acquired to him, by the vassal's continuing and remaining rebel, unrelaxed year and day, during the time of the running whereof he could not, medio tempore, make any valid disposition, whereby the casualty of the subsequent liferent might be prejudged, (he not being relaxed at the time of the said alienation, nor at no time within year and day;) neither was it respected, that the infeftment was given for satisfying a debt, which preceded the rebellion, seeing it was only a personal obligation, and there was no obligation for giving of that real infeftment of the lands, whereupon the exception was proponed.

Act. Stuart. Alt. Nicolson. Clerk, Hay. Durie, p. 260.