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Scottish Court of Session Decisions >>
Douglas v Feuars. [1565] Mor 13993 (2 March 1565)
URL: http://www.bailii.org/scot/cases/ScotCS/1565/Mor3213993-002.html Cite as:
[1565] Mor 13993
When kirk lands are let in feu, found that the heirs and executors of the letter were not bound in warrandice, although the feuar paid money at his entry, because it was presumed to have been applied in utiletatem ecclesiae.
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In an action of reduction of infeftment of feu-farm of the kirk-lands of moved by Mr Archibald Douglas against the tenants thereof, the defenders desired a day to call their warrant of the executors of him who had set the said lands in feu-farm, the last possessors of the said benefit. It was answered, The said infeftment made no mention of any sums of money received from the farmers, therefore they ought to have no warrant. It was answered, In respect of the yearly mail contained in their charter, the setter ought to warrant; like-as warrandice is given upon assedations. The Lords found, That the executors or heirs of kirkmen, in such cases, should not be obliged to warrandice, albeit the possessor had received money, as the defenders offered them to prove he had done by his acquittance; because the said money was presupposed to have been converted in utilitatem ecclesiæ; and also refused to give them a day to call the successor, because the said Mr Archibald, pursuer, was successor, who was present at the bar, and so he should seek his warrant by way of exception, quia quæ de evictione tenet actio eundem ab agendo repellit exceptio.
