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Scottish Court of Session Decisions >>
Somervel v Somervel of Drum. [1631] Mor 14320 (23 March 1631)
URL: http://www.bailii.org/scot/cases/ScotCS/1631/Mor3314320-015.html
General Clause of Tradition, cum omni juris solemnitate. - General Clause of State and Sasine. - Where there are several Creditors in the same bond.
Somervel v. Somervel of Drum
Date: 23 March 1631 Case No. No. 15.
The same with regard to an annual-rent, though there was no mention of a penny money.
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In a double-poinding of the ground of annual-rent, wherein the pursuer was infeft by precept of the heritor of the land, granter of the annual-rent, conform to the charge upon a retour, executed at the pursuer's instance, as heir to the first acquirer of the annual-rent, from the said Hugh Somervel of Drum; the first annual-renter's sasine being quarrelled, as null, because it bore not sasine to be taken per traditionem denarii, which is a necessary symbol required to sasines of annual-rent, specially seeing this is proponed to elide an action upon an old sasine, 36 years since, and never clad with any possession, and therefore ought to be the more favourably received. This allegeance was repelled, because the sasine bore, “the same to be given and done according to the solemnities used in such cases;” and the Lords would not annul the sasine for this defect alleged. And the defender alleging further, That the ground could not be poinded for the years betwixt the time of the pursuer's predecessor's decease and the pursuer's sasine, because the same, during that space, was in his hands, as superior, by non-entry; and the pursuer replying, That he could not be heard to allege non-entry, because, by the contract of alienation made betwixt him and his umquhile predecessor, he was obliged to pay the said annual-rent, as well infeft as not infeft; the Lords found, That this contract might be a ground to produce personal action, or execution thereupon, against the defender; but that they would not thereupon sustain this action to poind the ground as a title thereto.
Act.Alt. Gray.Clerk, Hay.
Fol. Dic. v. 2. p. 362. Durie, p. 585.
