Scottish Court of Session Decisions

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.

Maxwell of Barncleugh
v.
Frazer and Lauchlisom

Date: 22 June 1711

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The six-merk land of Kerse, belonging to one John Kilpatrick, being kirk-lands, they paid £120 Scots of yearly feu-duty to the lord of erection. Kilpatrick gives off a part of thir lands to Frazer and Lauchlison, extending to the half; and, by their charters, obliged them to pay a small blench duty pro nmni alio onere, with absolute warrandice. Maxwell of Barncleugh adjudges thir lands from Kilpatrick in 1680; and, being forced to pay the £120 of feu-duty to the lord of erection, he raises a process against thir two sub-vassals, who had a part of the six-merk land subset to them in feu, and craves they may relieve him of a proportion of this 120 of feu-duty he has paid to the lord of erection, effeiring to the share they possess of the whole feu liable in that sum.

Alleged,—That Kilpatrick's authors, above 90 years ago, feued out these parcels to their authors, whereon they are infeft; and, past prescription, have never paid more than the blench-duty contained in the reddendo of their charters; neither could he exact any more from them, seeing he got a full adequate price, and disponed the feu, with absolute warrandice, against all further burdens. It is true the Crown or lord of erection might distress any part of the six-merk lands for the whole, unless they had confirmed the sub-feu; but then he behoved to give them an assignation for their relief against the rest of the lands: And you, Barncleugh, being only an adjudger, you have no better right than Kilpatrick your debtor had, from whom you have adjudged it talis qualis as it stood in his person. Now, if he were pursuing us, his vassals, to burden us with a part of his feu-duty, we should exclude him exceptione doli, and as contravening his warrandice: we being obliged to pay him no more but the duty contained in our reddendo, and noways bound to relieve him of any part of the feu-duty he owes to his superior or the lord of erection. For, we being infeft long before Barncleugh's adjudication, that makes it real against him, and he must warrant the feus, just as his author was bound to do; and, when he pays the whole feu-duty, he disburdens his own lands, and can lay no part of it on the defenders, who can be burdened with no more than the reddendo of their charters.

Answered,—Thir sub-vassals having a part of the six-merk land, there can be nothing more just than they should bear a proportion of the feu-duty payable for the whole. And Barncleugh being a singular successor, he can never be liable in the personal warrandice given by his author; for the true remedy was to have got an infeftment of relief against the said feu-duty, which real warrandice would have defended against this pursuit; but that being neglected, ye have no recourse but only your personal warrandice against Kilpatrick the disponer's heirs: and his adjudication can never subject him to his author's personal warrandice, more than it can make him passive liable to fulfil and implement his deeds. And, as to the pretence that a master might as well seek relief from his tenant of what he pays to his superior, as a vassal to distress his sub-vassals beyond his reddendo, such remote parallels, which noway quadrate, serve only to darken and involve the case. For a master getting his rent and tack-duty has no more to crave; but a sub-feu, by the nature of feudal rights, stands really affected with the original reddendo, as debitum fundi, that may be exacted from any part of it.

The Lords differing in opinion anent this point, they ordained it to be heard in their own presence.

Vol. II. Page 650.