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Scottish Court of Session Decisions >>
Herris v Glendinning. [1623] Mor 3660 (3 December 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor0903660-058.html Cite as:
[1623] Mor 3660
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One Janet Herris having certain lands disponed to her by Glendinning of Parton by his charter of alienation made to her of the same, and having served inhibition thereupon, no sasine being taken of the lands for the space of fifteen years after the charter; and after sasine, she pursuing removing, the pursuit was elided, because after the charter, and before the sasine, Parton who was her author, was rebel, and remained so, before she took sasine, year and day at the horn, whereby his liferent of these lands fell in the King's hands; likeas the said liferent being given to a donatar, declarator was obtained thereupon, and the donatar acquired possession before the sasine, which was found relevant to exclude the pursuer's right; seeing the charter made to her, albeit before the rebellion, and albeit inhibition was execute against her author, although before his rebellion, yet the same remained in the naked terms of a personal obligation, so long as sasine was not taken thereupon, and gave not the pursuer any real right to the land before the sasine, betwixt the which, and the charter, her author's rebellion intervening, who was not effectually denuded, by the naked charter, but who remained in the real right of the land, gave right thereof to the King for his lifetime, and she had only personal action against himself and his heirs; for, in this case, the King's donatar was in as good estate as any other person, who had acquired a real right of the land after the pursuer's charter, and before her sasine, and who would have been preferred to the pursuer; and the inhibition preceding could not derogate from the King's right acquired by the rebellion.
Act. Cunningham.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 256. Durie, p. 85.
