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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Mrs Rule v. Patrick Home
Date: 22 February 1709
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I reported Mrs Rule against Patrick Home, writer to the signet. Mr Robert Rule, late minister at Stirling, standing infeft in the lands of Peel walls, infefts Elizabeth Campsie, his wife, in a liferent-annuity furth thereof, for L.50 sterling per annum; whereon she pursues a poinding of the ground against Patrick Home, and the other possessors: Who alleged,—He ought to be preferred, both upon his voluntary right by disposition from her son, as heir, but likewise on his legal diligence of adjudication against the former heirs; especially seeing her husband's infeftment was null, proceeding from the wrong superior, having taken a precept of clare constat from Home of Plendergest, in 1676: whereas, the lands of Peelwalls were truly a part of the lordship of Haills, and feued out by the Earls of Bothwell to one of the sirname of Rule; and, on the forfeiture of Hepburn, who married Queen Mary, it returned to the crown, and was confirmed to them by King James VI. in 1567, and thereafter gifted to the Stewarts, created Earl of Bothwell; and came by progress to the Viscount of Kingston, and from him to Sir James Stampfield; and was acquired, at a roup, by Sir David Dalrymple, who pursued both the relict and Mr Home in another improbation and nonentry: so that he had no other way to stop it but by offering a charter. And so there can be no poinding of the ground upon her husband's null infeftment from the wrong superior.
Answered,—By a charter from King Charles II. in 1663, to Home of Plendergest, upon the resignation of Home of Linthill, it appears Peelwalls is designed a part of the barony of Plendergest. And accordingly the pursuer's husband and authors entered by him, and Renton of Lamberton, who adjudged the right of these lands from him: and so they have prescribed the superiority of thir lands of Peelwalls, by being in possession thereof these 45 years, even since the date of the charter in 1663. And, as the lands holding of Haills, Commissary Home showed no connected progress from the forfeiture of Bothwel, in 1567, down to his own right.
Replied,—Plendergest's charter, in 1663, foisting in Peelwalls as a part of that barony, is a gross and palpable mistake: for, 1mo, Linthill's seasine, on whose resignation it proceeds, makes not the least mention of these lands of Peelwalls, and so he could not transmit them to Plendergest. 2do, Plendergest is called a 16 husband-land; whereas, if it comprehended Peelwalls, it behoved to be a 24 husband-land, seeing Peelwalls alone was an eighth husband-land: So it is obvious that it is no part of the barony of Plendergest.
The Lords thought both parties should produce what evidences they had to clear who was the true superior. But it was started by some of the Lords, that Mr Home's disposition from the pursuer's son was informed to be burdened with his mother's liferent, and a part of the price retained for purging thereof; which was a homologation of her right, and stops his mouth, that he cannot object this nullity of her husband's being entered by the wrong superior. Therefore the Lords ordained that point of fact to be tried; and in the mean time modified 500 merks to be paid to her, betwixt and the first of April, for her subsistence.
