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Scottish Court of Session Decisions >>
Oswald v Cathcart, [1681] Mor 5116 (24 June 1681)
URL: http://www.bailii.org/scot/cases/ScotCS/1681/Mor1205116-008.html Cite as:
[1681] Mor 5116
A donatar pursuing for non-entries, a charge upon an apprising without the offer of a charter and an year's rent, was not sustained to exclude the non-entry duties.
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James Oswald, as donatar to the non-entry of some tenements in Prestoun, pursues declarator thereon. It was alleged for Daniel Cathcart, That he had apprised the same tenements, and charged the superior to enter him; so that the superior being in the fault, in not obeying, the charge, he nor his assignee the donatar could not claim the advantage arising by his fault; likeways a charge is always equiparate to an infeftment. The, pursuer answered, That though a charge be sufficient to prevent posterior rights, yet it can never prejudge the superior of his casualties by his former vassal, who remains undenuded, seeing the charge would not make the appriser liable to these casualties; neither was the superior in the fault, unless the appriser had presented him a charter, and paid the bygone non-entry, and offered him a year's rent, either of the land, or the money in the apprising, as the Lords have oft-times sustained, both in the case of ward and non-entry.
The Lords, found the charge did not exclude the superior, unless a charter and a year's rent had been offered, but found no necessity to offer the bygone non-entries,
