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Scottish Court of Session Decisions >>
James Cook v Dick of Grange, [1749] Mor 15023 (21 June 1749)
URL: http://www.bailii.org/scot/cases/ScotCS/1749/Mor3415023-027.html Cite as:
[1749] Mor 15023
Subject_1 SUPERIOR AND VASSAL. Subject_2 SECT. VII.
Penalty on Superior for refusing to enter Vassals. - Superior possessing on Decree of Non-Entry.
James Cook v. Dick of Grange,
Date: 21 June 1749 Case No. No. 27.
A superior possessing on a decree of non-entry, which was afterwards reduced, it was found the rents received imputed first to the feu-duties, and next to reparations.
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Dick of Grange obtained a decreet of non-entry of certain lands feued by him, whereupon houses had been built, which was reduced at the instance of James Cook, an adjudger, and he found liable to account; and in the accounting, the Lord Ordinary, 23d July, 1748, “sustained a claim of annual-rent of money advanced by Grange, for the repairs and meliorations of the subjects in controversy, and found the same, with the by-gone and current feu-duties due to him, and the rents chargeable against him ought to be stated periodically.” And 28th November, “found that the rents ought to be applied in the first place for payment of the expenses of repairing the respective houses, for which the rents became due, and annual-rents thereof; and after paying these, for payment in the next place of the feu-duties.”
Pleaded in a reclaiming bill: The rents received by the petitioner, who was creditor in the reparations and the feu-duties, must as an indefinite payment be applied first to the feu-duties, which are found not to bear annual-rent, especially considering that the feu-duties are a preferable debt on the subject.
Answered, The rents only arise after deduction of the necessary reparations.
The Lords, 9th June, found that the rents were to be applied in the first place to the extinction of the feu-duty, and this day refused a bill, and adhered.
Act. A. Macdouall and Lockhart.Alt. Hay.Clerk, Kirkpatrick.
D. Falconer, v. 2. No. 69. p. 75.
*** See a case between the same parties, No. 7. p. 1724. voce Bona fide Consumption.
