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Scottish Court of Session Decisions >>
Mr. Jedburgh v Earl Hume. [1628] Mor 16086 (15 February 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor3716086-019.html Cite as:
[1628] Mor 16086
Found that a personal bond to convey certain lands contained in a charter gave sufficient title to sue a proving of the tenor of that charter.
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In an action Mr. Jedburgh against Earl Hume, for proving the tenor of a charter of divers lands granted to umquhile Andrew, Abbot of Jedburgh, which umquhile Andrew had given infeftment to the pursuer of certain of these lands, contained in that charter, and by his bond he had obliged himself to give infeftment to the pursuer, of some other lands therein contained. This action was sustained against the Earl Hume, he being now heritor of the lands; albeit it was alleged, that he was minor, and was not holden in his minority, placitare super hæreditate paterna; for if the tenor of this charter were proved, being anterior to his right, it would make the same fall; which allegeance was repelled in this nature of action, for proving of the tenor of the charter. In this process also the Lords sustainep the pursuer's interest, viz. as being infeft in some of the lands contained in that charter, to seek probation of the tenor thereof, for the whole lands therein contained, albeit he had only right to a part, seeing the charter could not be divided anent the trial of the tenor thereof. Likeas they found, that the personal bond concerning some other of the lands therein contained, gave the pursuer interest to seek probation of the tenor of the said charter, albeit the defender alleged, that a personal bond could not produce action for proving of the tenor of a real right, except some other action had been first moved upon that personal bond, which might in law produce a pursuit concerning a real right in the person of the maker of the bond; which was repelled.
