Scottish Court of Session Decisions

Subject_1 QUOD POTUIT NON FECIT.

Scrymgeour
v.
The Earl of Northesk

Date: 8 July 1675
Case No. No 7.

Found in conformity to M'Cleland against Lady Kirkcudbright, supra.

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Umquhile Major Scrymgeour being infeft in the lands of Achmethie, upon an apprising deduced against Guthrie of Achmethie's daughter, Margaret Scrymgeour being infeft as heir to him, pursues a reduction of a disposition, and infeftment of the same lands, granted by Achmethie to the Earl of Northesk's father, then designed Earl of Ethie, upon this reason, that the Major's infeftmènt, upon his apprising, was long prior to Ethie's infeftment. The defender alleged, Absolvitor, because, though his father's infeftment was posterior, yet it did proceed upon real rights, viz. feu-duties and annualrents, which, being debita fundi, any infeftment founded thereon would be drawn back ad suam causam. Ita est the defender's infeftment, although it be in the terms of an absolute disposition for sums of money, yet, by a back-bond produced, it is qualified, and declared to be for relief of the Earl of Ethie of his cautionry for Achmethie, in this manner: Achmethie being charged by letters issuing from the Exchequer for the feu-duties of his lands of Achmethie, he suspended, and found the Earl of Ethie cautioner; which suspension being discussed in Exchequer, the letters were found orderly proceeded; for the feu-duties being four thousand and odd hundred pounds due to the King superior, who thereafter gave a right to the Earl of Dysart, who disponed the same to Panmuir, whereupon Ethie made payment to Panmuir of the said feu-duties, and thereby came in place of the superior; so that a disposition by the vassal, for satisfying of these feu-duties, is equivalent as if the superior, or his assignee, had insisted by a poinding of the ground, and thereupon had apprised the ground-right and property, and had been thereupon infeft, which infeftment would, without question, have been preferred to any infeftment for a personal debt though prior; because the nature and constitution of debita fundi is such, that all apprisings thereupon are drawn back to their cause, and preferred to all other apprisings, and therefore, apprising being but a judicial disposition, a voluntary disposition and infeftment should be equivalent; and parties should not be necessitated, by legal and expensive diligence, to insist for the same, if the vassal be willing voluntarily to dispone and infeft the superior, or these deriving right from him for payment, or relief of these debita fundi, which is much more easy for all parties concerned; and the pursuer can pretend no detriment that Ethie took a voluntary disposition in place of an apprising. The pursuer answered, That the defence was noways relevant; for, albeit it be true, that the feu-duties and annualrents do secure the superior, and the annualrenter, against all rights proceeding upon the fiar's voluntary disposition, or apprising on his personal debt, yet the only habile way to make these debita fundi, to affect the properties of the land, is by poinding of the ground, which is a real action, introduced by law, and peculiar to these rights, and there is no other habilis modus; for if a fiar, by contract, be obliged to pay the feu-duty yearly, or to pay an annualrent yearly, if thereupon the superior, or annualrenter, should apprise, their apprising would have no priviledge, but from its date and infeftment, because it proceeds upon personal obligements, unless the apprising had been by poinding of the ground upon the real right; much less can a voluntary disposition by the vassal be drawn back ad suam causum, which is a progress never to this day founded upon or sustained; nor hath it any importance, that the pursuer cannot pretend any detriment by this right, more than if it were upon an apprising, because on that account the like might be pretended, if there were but an assignation granted by the superior; but there are habile and peculiar ways in law, to prosecute every right, which no equivalency can supply; and, therefore, the voluntary disposition granted to the defender ought to be reduced, reserving the feu-duty to be proceeded upon debito modo, as accords of the law, which, if it be not extinct, will certainly affect the ground, but not in this method.

The Lords sustained the reason of reduction upon the priority of the pursuer's infeftment, to reduce this voluntary disposition, and found not the same equivalent to an apprising, but reserved the defender's right upon the feu-duties, as accords.

Fol. Dic. v. 2. p. 309. Stair, v. 2. p. 340.

*** Gosford's report of this case is No 30. p. 258.. voce Adjudication.