Scottish Court of Session Decisions

Subject_1 NON-ENTRY.
Subject_2 SECT. IV

Full Mails not due from Citation, where the Defender has a colourable Excuse.

Douglas of Kelhead
v.
Carlyle and Others

Date: 23 June 1675
Case No. No 36.

A superior having assigned his right to the non-entry of lands, the full duty was given, not from citation, but from the date of production of the assignees title.

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Kelhead pursued a declarator of non-entry, pretending that he was superior of the lands libelled; in which process, it was alleged, That he was not superior of the said lands, in respect the right libelled, that he had from my Lord Queensberry, was to be holden of the disponer; and Queensberry being superior to the defenders, could not interpose another betwixt him and them; and upon the proponing of the said allegeance, the pursuer was forced to reply upon a right to the casualties granted by a paper apart by my Lord Queensberry to the pursuer; and thereupon process was sustained, and decreet given for the retoured duty before the intenting of the declarator, and the full avail and rent of the land after the intenting of the cause; of which, suspension being raised upon these reasons; 1mo, That, after decreet of declarator was recovered, the superior and his donatar have right to the lands during the non-entry, and may remove tenants, or uplift the duties from them; but before declarator, there could not be a sentence for poinding the ground, for the full avail; 2do, Though the ground could be poinded for the full avail, yet the the pursuer has no right but to the feu-duties even after the intenting of the cause, before the pursuer did found upon and produce the assignation foresaid, as his right to the casualties; seeing there being a question whether my Lord Queensberry or the pursuer had right to the superiority, and the libel being only founded upon the pursuers right as superior, the defender was in bona fide, and could not enter nor be liable for the full avail, until the question was cleared by production of the said assignation, and therefore could not be liable until the same was produced.

The Lords as to the first reason, found, That after the intenting of the declarator of non-entry, at the instance of the party having right, the defenders are liable in the full avail, and that the real conclusion of poinding the ground for the same may be sustained, seeing the ground may be poinded for a rent liquidate, as it was in this case; and when lands are not retoured, the pursuer, even before declarator, may crave right to the rents. As to the second, the Lords were all clear, that the defender was not liable for the full avail, but after production of the title, whereupon the pursuit is sustained; but it being moved, that the defender having proponed the said allegeance before the same was repelled, and decreet given out for the full avail, after intention of the cause; some of the Lords were of the opinion, that there was no remedy; others thought, that there being a clear iniquity and prejudice to the party, and the Lords being convinced of the same, they ought to do justice to the party; and the question being brought before them upon suspension ex incontinenti, and not ex intervallo, the sentence non transivit in rem judicatam; whereupon some heat having arisen among the Lords, while some did plead the credit of the house, and the security of the people, that the decreets of the Lords in foro should be an ultimate and unquestionable decision; and others thought and did represent, that the honour of the house, and interest and security of the people consists in this, that justice should be done, and no evident iniquity should be without remedy, especially where a decreet has not taken effect, and become res judicata, but is drawn in question immediately by a suspension; the Lords did demur, and decided not that point. See Personal & Real.

Fol. Dic. v. 2. p. 6. Dirleton, No 273. p. 132. Reporter Castlehill. Clerk, Gibson. *** Stair reports the same case:

1675. July 16.—The Laird of Kelhead having obtained a right from the Earl of Queensberry, the Earl of Queensberry interposing Kelhead betwixt himself and his vassals, did thereupon pursue general and special declarator of non-entry, and obtained decreet. The vassals suspend on these reasons; 1mo, The decreet is null, in so far as after the pronouncing thereof, the same with the summons whereupon it proceeded were cut, and a new conclusion libelled for poinding the ground for the full rents, by the general declarator, which the Lords would never have sustained, being against law; for the retoured duties by the general declarator are debita fundi, until the vassals be cited in the special declarator, which is but a personal action the superiors have for the mails and duties of ward-lands.

Which the Lords having found upon inquiry of the clerks and servants, did repone the defenders against the decreet, and found the vassals only liable for the rents, in so far as they had intromitted personally.

The suspenders further alleged, that seeing they are now reponed, they allege that the full duties cannot be due from the citation in the declarator, as ordinarily it is sustained upon this ground, that after the citation the vassals are in mala fide, and contumacious, in not craving the renovation of their infeftments, or relinquishing their possession; which cannot hold in this case, for Kelhead's infeftment being null, because thereby he was interposed betwixt the superior and his vassals, they were in bona fide to continue their possession, and not to seek renovation of their infeftments from Kelhead, whom they were not obliged to acknowledge as their superior. It was answered, that this allegeance was proponed and repelled in the decreet, in respect of this reply, that in Kelhead's disposition, not only is the superiority disponed, but per expressum all the casualties of Queensberry's superiority, whereby though his infeftment of the superiority itself was not valid, yet by the disposition of the casualties, he had right as donatar, and therefore the full duties were found due from the citation on the general declarator. It was replied, that the vassals were not contumacious by the citation, which was only founded upon the infeftment which did not express an assignation to the casualties, but only bore a general clause according to the provisions contained in the disposition; so that they were never in mala fide, till the disposition was replied upon, and produced, which cannot be excluded as competent and omitted, because the suspenders are reponed against the decreet.

The Lords found the vassals liable for the full duty, only from the date of the reply, and production of Queensberry's disposition, containing an assignation to the casualties and superiority, in respect the vassals were not contumacious before.

Stair, v. 2. p. 349.