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Countess of Errol v Tenants. [1582] Mor 7797 (#date December 1582)
URL: http://www.bailii.org/scot/cases/ScotCS/1582/Mor1907797-020.html Cite as:
[1582] Mor 7797
Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
Countess of Errol v. Tenants
1582.
December. Case No. No 20.
A husband, who was only a liferenter himself, granted a liferent to his Lady. After the husband's death, she raised an action of removing against tenants. Found, that it was jus tertii to them to plead that the liferent was extinct.
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The Lady Esselmont, and some time Countess of Errol, as liferentrix, warned certain tenants of the lands called Redgeill to flit and remove ab iisdem rursum fuit per tenentes, se non debere removere, at the instance of the said Lady, as liferentrix, because her liferent was given to her by her umquhile husband, the Earl of Errol, who was but a liferenter himself of the said lands; her son, the Earl of Errol that is present, being fiar, before the disposition made to the said Lady, and so, after his decease, her liferent behoved to expire, and so her right and title being expired, she had no place to warn. To which it was answered, That the allegeance made by the tenants against her title was jus tertii, and that it was not extinctum juris agentis, because tertius ille, who is the present Earl of Errol, was bound and obliged to warrant the said liferent to the Lady, as she had obtained decreet of warrandice against him for the same, et sic quoad illum quem de evictione tenet actio eundem ab agendo repellit exceptio, and so the said allegeance proponed into the name of the said Earl, for the tenants should never be competent to save from removing, quia non fuit extinctum juris agentis neque suspensum.——The Lords, after long reasoning, for the most part pronounced and voted, and repelled the exception, and admitted the reply; and found, that the tenants had no place to allege this defence in the name of the Earl.
