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Scottish Court of Session Decisions >>
Creditor of Seton v Seton. [1702] Mor 15046 (13 February 1702)
URL: http://www.bailii.org/scot/cases/ScotCS/1702/Mor3415046-055.html Cite as:
[1702] Mor 15046
Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. XI.
Composition due by Singular Successors.
Creditor of Seton v. Seton
Date: 13 February 1702 Case No. No. 55.
Where the superior is debtor, he is bound to receive the adjudger gratis.
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George Seton of Barns having granted an heritable bond for 5,000 merks to Robert Seton in Tranent, forth of his lands, whereon Robert was infeft; and a creditor of his having adjudged this right from his son; he pursues the said George Seton of Barns, the debtor, to make payment; who alleged, you cannot validly renounce, nor dicharge, not being infeft. Answered, The right being base, holden of the granter, I am content for capacitating me to accept a charter and be infeft. Replied, You being an adjudger, and so a singular successor, I am willing to receive you; but, by the act of Parliament 1469, and act 1669, you must first pay me a year's rent of the subject and sum adjudged. Duplied, This is good law, and is due ex natura feudi, if you were not the debtor and personally liable, and bound to infeft me, my heirs and assignees; and though you got it, I could repeat it again by your personal obligement to pay, et frustra petis quod mox est restituendum; and by the civil law, the creditor had the actio contraria pignoratitia, by which he recovered all the expenses he wared out in the thing impignorated. Triplied, The obligation to receive assignees is only understood of the assignee to the bond before the cedent has taken infeftment, which is clear in ward-holdings, where that clause will not exclude recognition, if the vassal should infeft one base without obtaining the superior's consent; and if a creditor in a personal bond die, his heir or executor cannot uplift the money without a service or confirmation; neither will he force the debtor to repay him the expense he gave out in making up his title. The Lords considered, if the superior were a singular successor to the first granter of the right, there could be no doubt but he might exact a year's rent; but here the debtor in the annual-rent continued superior. Next, some made a difference between his seeking a charter in order to continue the infeftment, and one seeking an entry and infeftment in order to extinguish, renounce, or validly convey, seeing the debtor in this last case requires it for his own security. 3tio, The Lords thought, that though cautious and wary creditors did insert a clause in their rights, that the granter should enter them gratis, and that when any casualities of life-rent-escheat, non-entry, or the like, fell in their hands, as superiors, they, should dispone the same to the vassal, yet that was only adjected ad majorem cautelam et ex superabundanti; and therefore the plurality found, that the superior here being debtor, he was bound to receive this adjudger gratis.
Fol. Dic. v. 2. p. 409. Fountainhall, v. 2. p. 145.
