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Scottish Court of Session Decisions >>
Weir v Drummond. [1664] Mor 5244 (13 February 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor1305244-012.html Cite as:
[1664] Mor 5244
Rights and powers of an apparent heir, as to removing tenants, uplifting rents, selling the predecessor's estate, &c. - - To whom rents unuplifted during apparency belong.
Weir v. Drummond
Date: 13 February 1664 Case No. No 12.
The tenants of a hæreditas jacens may safely pay to the apparent heir, though he cannot pursue them, unless they have acknowledged him by payment. The bygone rents may be arrested for the debts of the apparent heir, and the decree of furthcoming will be effectual, though he die without entering.
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In a process betwixt Mr William Weir, servitor to the King's Advocate, and Mr Henry Drummond of Balloch and his tenants, against which tenants Mr William had obtained a decreet to make their duties furthcoming, as arrested in their hands, and belonging to the deceast ——— Drummond of Balloch, who was cited; it was alleged by Balloch, That the decreet could not be respected, being for duties not belonging to the defunct, seeing he was never infeft as heir to his father, and consequently the duties of all years since his father's death do appertain to him. It was answered, That the defunct being apparent heir, as the tenants might safely pay their duties to him, though he were not infeft; so his creditor might lawfully arrest the duties so payable; for albeit an apparent heir cannot pursue an action of mails and duties, yet the tenant may lawfully pay him; yea, and if the tenant hath once acknowledged him by payment, he may pursue without an infeftment; nor is there any other habilis modus for the apparent heir's creditors to affect the by-run duties, but by arrestment; for neither comprising nor adjudication, which are the ground of infeftments, can carry duties owing before they be deduced; and consequently the only proper way to affect the same is by arrestment, whether it be for the apparent heir's debt, or for the debt of the defunct to whom he is apparent heir; whereupon a charge to enter heir being raised, and an arrestment thereupon used, that arrestment, after sentence, (the apparent heir getting condemnator, or absolvitor upon a renunciation to be heir), will be a ground to make the duties furthcoming.
