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Scottish Court of Session Decisions >>
Mrs. Elizabeth Rose v Mrs. Anne Fraser. [1790] Mor 15867 (26 January 1790)
URL: http://www.bailii.org/scot/cases/ScotCS/1790/Mor3615867-043.html Cite as:
[1790] Mor 15867
Due out of lands situated within the royalty of a burgh, and contained in the charter of erection, if held not in burgage, but in feu, of the town.
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Mr. Rose of Kilravock died infeft in certain subjects situated within the royalty of the burgh of Nairne, and comprehended in its charter of erection, but which were held of the Magistrates in feu.
His widow having been served to her terce of these subjects, the service was challenged in an action of reduction at the instance of his heir, who
Pleaded: It is incontrovertible, that no terce is due out of burgage tenements, Craig, Lib. 2. Dieg. 22. § 34; or, as it is expressed by Lord Stair, ” tenements within burgh, or holden burgage.” Nor is there room for distinguishing between tenements within burgh, though, like those in question, held of the town in feu, and those holden burgage, as if the terce were more exigible out of the former than out of the latter. Brieves of terce are not competent before Bailies of royal burghs; but, if the terce had been understood to be due from such feus, this could hardly have been the case. Not a single instance has been pointed out of any terce in such circumstances.
Answered: The exemption of burgage tenements from terce, if a part of our law, is one for which no good reason has been assigned. In the case of a burgh of barony, or of regality, it was disregarded by the Court, Park against Gibb, 15th November, 1769, No. 36. p.15855.
But, at any rate, the exemption is to be strictly confined to burgage tenements, such as are held by burgage tenure; whereas the defunct was infeft under a feu-holding. That rule is laid down by Sir Thomas Hope, Min. Prac. Tit. 9. § 16. and by Mr. Erskine, B. 2. Tit. 4. § 9.
The Court were unanimously of opinion, That the rule excluding burgage-tenements from the claim of terce, was applicable only to those held by burgage tenure, and
The Lords repelled the reasons of reduction.
Reporter, Lord Stonefeld.Act. Wight, et alii.Alt. Lord Advocate, et alii.Clerk, Menzier.
Fac. Coll. No. 104. p. 194.
