Scottish Court of Session Decisions

Subject_1 SOLIDUM ET PRO RATA.
Subject_2 SECT. XVII.

Wrongous Intromitters. - Delinquents.

Lady Dumfermline
v.
The Earl, her Son

Date: 13 February 1628
Case No. No. 105.

The Lords sustained process both against the heir who was convened for the terce up-lifted by him, and also against the tenants who were convened for payment of it, and that in solidum.

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In a pursuit by the Lady Dumfermline, against the Earl her son, for payment of the terce of the feu-duties of the lands disponed in feu to the feuers thereof, and which feu-duties, by the feuers' infeftments, were due to her umquhile husband, by his right of the same lands, he being superior to them, and they being his feuers, and proprietors of the lands; to the third of the which feu-duty she acclaimed right by her service, as Lady-tercer, served to the third of all the lands wherein her husband died infeft; and he being infeft in these lands, albeit the property pertained to the feuers, yet her husband's infeftment, although it extended not to the property of the lands, it was valid for the feu-mails, and consequently, albeit she had no right to the terce of the lands, whereof her husband was not proprietor, yet she acclaimed right to the third, and terce of the said feu-duties, to the which she restricted her service and pursuit. The Lords found, that the Lady-tercer had no right to claim any right of terce out of any feu-duties, whereof her husband had right the time of his decease, seeing he being denuded of the property, and retaining only the right of the superiority, with the said feu-duties, which was a consequent of that sort of holding belonging to him as superior, the same could no more pertain to her as Lady-tercer than the third of the superiority, whereof she could have no right in law by virtue of her terce; and this was so found, because she being provided to a sufficient conjunct fee, by and attour her terce, the Lords found therefore no terce could belong to her, but that which has been clearly by preceding practiques given before to other Lady-tercers; and seeing it could not be shown, that services of terces at any time preceding were deduced, or allowed for the third of feu-duties, therefore, in this instance, they would not begin to introduce a new consuetude, where the Lady was besides sufficiently provided of a conjunct fee, there being nothing shown where the like was granted at any time preceding; but here it is to be marked, that the Lady was served to the third of the lands, so that her title differed from the desire of her summons, wherein she craved the third of the feu-duties, and retrenched her title thereto; whereas in her title she was not served nor kenned to the third of the feu-duties, and so there was a disconformity. This cause being thereafter reasoned again, the Lords abode by this interlocutor, and decerned according thereto, 25th March, 1628; at the which time the Lords sustained the pursuit, both against the Earl and his tutors and curators, who were convened for payment of the terce uplifted by them, and against the tenants, who were convened for payment of the same duties, and the summons was sustained in solidum against them both, but declared, that once payment by either of them should liberate both the parties. In this process the Lords found, that the Lady ought to have the terce of the whole teinds, wherein her husband died heritably infeft; albeit it was found that she could hot have right to seek a liferent thereof as a conquest, conform to her contract of marriage, as is marked 12th March, 1628, in that action betwixt them there mentioned, No. 2. p. 3048. voce Conquest. (See Terce.)

Fol. Dic. v. 2. p. 385. Durie, p. 344.