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The Donatar to Mowat of Buquhollie's Estati, v Ross. [1697] 4 Brn 392 (21 December 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Brn040392-0793.html Cite as:
[1697] 4 Brn 392
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Donatar to Mowat of Buquhollie's Estati, v. Ross
Date: 21 December 1697
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The Donatar to the recognition of Mowat of Buquhollie's estate pursuing a declarator, compearance is made for one Ross in Aberdeen, who has an ancient wadset on that estate, which though base and never confirmed by the superior, yet they contended it ought not to fall under the recognition; because that being incurred by an alienation made by Sir George Mowat to Magnus Mowat, the apparent heir to the first granter of the wadset, and his infefting himself base thereon, Sir George's right to the lands was allenarly by a comprising, to which the wadset, (being clad with long possession before the leading it,) was clearly preferable, and therefore the appriser's deed ought not to prejudge the wadset; but the conveyance to the lineal heir of the first debtor makes the predecessor's right to revive; and, if he had disponed to his heir, who was alioqvi successurus, a base infeftment taken thereon would not have inferred recognition; so neither can the appriser's disposition to the apparent heir make the lands recognosce, he not being a stranger, but of the blood of the first vassal.
Answered,—Feudal delinquencies are now plainly established bylaw, arising from the nature of the holding, where it is a principle, that, where lands return by recognition, the superior is bound to acknowledge no rights affecting the feu save only these which are acknowledged or confirmed by himself; and the former vassal was fully denuded by this apprising, for it was many years expired; and so the appriser was turned the only proprietor, and the King's immediate vassal, by whose base alienation of the whole there is no manner of doubt but the recognition was incurred; and though it was to the heir of the former vassal, yet he was not Sir George Mowat the appriser's heir.
The Lords found this base wadset, though more ancient and preferable to the apprising, yet could not defend against the donatar to the recognition; and repelled the allegeance of its returning again to the lineal heir.
But the Lords took notice of another defence proponed,—That Forbes of Corse, the donatar, by his back-bond, declared the gift was taken to the behoof of the creditors; and it being answered,—That was only in favours of such as were expressly therein named,—
The Lords ordained the back-bond to be produced, that they might consider the precise tenor of the same.
