Scottish Court of Session Decisions

Subject_1 REDUCTION.

Fleming
v.
Ker

Date: 17 February 1548
Case No. No 5.

A gift of non-entry was made, and thereafter an heir was seryed and retoured. The service and retout being reduced, the gift revived.

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The Laird of Fleming's son called Dickson of Ormison to hear the five pound land of Glenhome, and certain other lands, decerned in non-entry, and to pertain to him the mails and duties thereof as donatar thereto, by our Sovereign Lord that last deceased; Janet Ker, the relict of Thomas Dickson, compeared for her interest, and said the non-entry of these lands pertained to her, by reason of the gift thereof made to her by the said Sovereign Lord, upon the second year before the said Lord's son's gift, and that by virtue thereof she bruiked the same diverse years. It was replied, That her gift might not seclude the said Lord's son's, because the said lands were full since Thomas Dickson's decease, by reason that a brother Thomas, son to the said Thomas, elder, was served by brieves as nearest and lawful heir to him of the lands, and entered thereto and bruiked the same eight or nine years, and therethrough the said Janet's gift had taken full effect, and was expired by that entry of the heir. It was duplied by Janet's procurator, That that service and retour was thereafter reduced, and decerned by decreet of the Lords to have been of no avail, because there was no sasine of the said Thomas younger of the said lands shewn to the assize, as the Lords' decreet of reduction produced by the said Janet reported, and so that retour and sasine following thereupon were of no avail, and that there was no lawful entry of the righteous heir to the said lands. It was answered by the other party, That by the act of Parliament, there may no person, after three years, call for reduction of brieves or retours, and this retour stood unreduced eight years, she being present in the country, and not calling for reduction thereof by reason of her interest, and so she might not now call claim to that reduction, et tanta silentia præjudicat. It was answered by Janet's procurator, That albeit lapsa triennii seclusio erat a reductione dicti brevi et inde secutorum per dictum actum Parliamenti, tamen reductione facta ad instantiam alterius poterat ipsa reducere ad jus suum ratione donationis prædict. quod interea dormiebat tamdiu; The Lords of Council decreeted, the said Janet's gift to prevail over the other gift, and that because there was no lawful entry of the righteous heir to the said lands libelled since the decease of his Majesty foresaid, by whom she had the gift of non-entry of the said lands; and that the brieves and retour and sasines foresaid, now reduced, prove not any lawful entry of the lawful righteous heir, and that it was even all one as if that retour and sasine alleged had never been; and that it takes not away the gift of non-entry preceding, because it was not lawful nor righteous, as now appears clearly by the decreet of reduction.

Fol. Dic. v. 2. p. 327. Sinclair, MS. p. 86.