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Scottish Court of Session Decisions >>
The Feuers of Chappeltoun v The L. Ernock. [1630] Mor 14991 (1 December 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor3414991-011.html Cite as:
[1630] Mor 14991
A right summarily to enforce facta prestanda, found not to follow the lands into the person of a singular successor.
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These feuers having acquired a right of some lands from ————— Marjoribanks of Ratho, to the which Ratho the L. Ernock was obliged to do certain deeds concerning these lands, and these pursuers having acquired Ratho's whole right of the lands, as singular successor to him in his right, pursues Ernock for registration of that bond; wherein the Lords found, That these singular successors could not pursue registration of the said bond, as their author might have done, but that they ought to intent an ordinary action for implement of the same, as accords, and not to seek so summary execution, by pursuit of registration, which the Lords would not sustain; but the pursuit was sustained at their instance as heirs to those persons to whom per expressum Ernock was obliged to do the deeds; for Ratho had feued these lands to the pursuers' predecessors for a feu-duty, and thereafter he had disponed his superiority to Ernock, who then obliged himself to these feuers to discharge them and their successors of a part of the feu-duty for ever; and this bond was craved to be registered by the pursuers, as heirs to them to whom the bond was made.
Act. Lawtie.Alt. Robertson.Clerk, Scot,
Durie, p. 544.*** Auchinleck reports this case:
There was a contract passed betwixt the feuers of Chappeltoun and Robertson of Ernock, whereby the said Laird of Ernock was bound to relieve the said feuers, their heirs and assignees, of a certain duty addebted forth of the lands of Chappeltoun. Some of these feuers-contractors sold and disponed their parts of the land to other persons; who, as successors, pursue Ernock to hear and see this contract registered against him at their instance as successors. It is alleged by the defender, That this contract could not be registered at their instance against him, seeing they were neither heirs nor assignees to the parties-contractors, but singular successors, and could not have the benefit of the said contract, by getting the same registered at their instance, whereby summary charges may be directed against him, but they must pursue him by way of action. The Lords ordained them to pursue by way of action, and refused registration.
Auchinleck MS. p. 171.*** Spottiswood also reports this case:
Thomas Marjoribanks of Ratho was obliged to pay an annual-rent to divers persons, feuers of Chappeltoun; and for the more sure payment thereof, he assigned to every one of them as much of their feu-duty which was due to himself as effeired to the quantity of the annual-rent owing to them by him. Thomas having disponed Ratho to the Laird of Ernock, he made him renew the former contract to the feuers. After this, it fell out that some of the feuers sold their lands to others; which singular successors sought, by way of action, to have Ernock's bond registered, whereby he was obliged to assign to the said feuers, their heirs, executors, and assignees, the foresaid feu-duty. The Lords would not sustain the action of registration at the singular successors' instances, to the end that they might have summary execution upon six days; but ordained them to pursue by an ordinary action.
