Scottish Court of Session Decisions

Subject_1 ACCESSORIUM SEQUITUR PRINCIPALE.

Earl of Lauderdale
v.
Wolmet

Date: 15 July 1664
Case No. No 5.

A decree of certification, against a decree of valuation, obtained by a donator during Cromwell's usurpation, found to accresce to the true proprietor when restored.

Click here to view a pdf copy of this documet : PDF Copy

The Earl of Lauderdale pursues a spuilzie of the teinds of Wolmet, against Major Biggar; who alleged absolvitor, because the lands of Wolmet were valued and approven.—The pursuer replied, That the said decreet of valuation was improven, by a decreet of certification obtained there-against, at the instance of Swinton, having right to these teinds for the time; by a gift from the usurper.—The defender duplied, That no respect ought to be had to the said certification; 1st, Because this pursuer derives no right from Swinton; being only restored to his own right; and Swinton's right from the usurper found null: so that, as the pursuer would not be burdened with any deed of Swinton's, to his prejudice; neither can he have the benefit of any deed of Swinton's to his advantage. 2dly, The said certification was most unwarrantable; in so far as the decreet of valuation, being in the register of the valuation of teinds, the defender was not obliged to produce it; but the pursuer ought to have extracted it himself. 3dly, All parties, having interest, were not called to the said certification, viz. Mr Mark Ker, the wadsetter, by a public infeftment; in whose right Major Biggar, now succeeds. And lastly, The defender alleged, that he had a reduction of the certification, upon minority and lesion; and the unwarrantable extracting of it.—The pursuer answered to the first, That seeing Swinton did use the pursuer's right, all real advantages, which were not personal, but consequent upon the real right, and which belonged not to Swinton, personaliter, but as pretended proprietor; do follow the real right itself; and accresce to the true proprietor; as if he had acquired a servitude, or had reduced the vassal's right, ob non solutum canonem. To the second, Oppones the certification, wherein compearance was made, for Wolmet; and three terms taken to produce; and no such defence was alleged, as that the valuation was in a public register. To the third, The pursuer needed not know the wadsetter; because it was an improper wadset; the heritor possessing by his back-bond, as heritable possessor, seeing the decreet of valuation was at the heritor's instance, it was sufficient to reduce it against his heir; for it would not have been necessary to have called the wadsetter, to obtain the decreet of valuation; but the then heritable possessor: so neither is it necessary to call the wadsetter, to the reducing or improving thereof. To the last, No such reduction, seen, nor ready; neither the production satisfied.

'The Lords repelled the defence, and duplies; in respect of the certification; which they found to accresce to the pursuer; but prejudice to the defender, to insist in his reduction, as accords: and declared, that if the defender used diligence, in the reduction, they would take it to consideration, at the conclusion of the cause.

Fol. Dic. v. 1. p. 1. Stair, v. 1. p. 213.