Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. V.

Clauses burdening Conveyances.

Hugh Montgomery
v.
Lord Kirkcudbright

Date: 20 December 1661
Case No. No 55.

A party was barred from pursuing a process of ejection, although the defender had no real right, but only a personal obligation of the pursuer to grant to the defender a real right.

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Hugh Montgomery of Crainshaw, and —— M'Clellan his spouse, pursue the Lady Kirkcudbright, for ejecting them out of the five pound land of Overlaw, and craved re-possession, and payment of the mails and duties intromitted with. The defender alleged no process, because it is not alleged that the pursuers were in natural possession; for only the natural possessors can have decreet of ejection, because, if there be no deed of violence libelled, but only intromitting with the mails and duties, ejection is not competent, nor any violent profits, but only action for mails and duties against tenants or intromitters. The pursuers answered, That the ejection may be competent though the pursuer was not in natural possession, when a tenaut is ejected, and a stranger without interest enters in the natural possession; albeit the tenants should collude or neglect, the heritor having but civil possession, by uplifting of mails and duties, needs not warn the ejector, but may crave to be entered to the natural possession and the violent profits. The defender alleged, the case is not here so, unless it were alleged the tenants were cast out; but the defender may defend the right to the mails and duties upon a better right than the pursuer. The pursuer answered, That he declared, he craved only re-possession to the ordinary profits. The Lords ordained the parties to dispute their rights to the mails and duties, and possession, as in a double poinding, and as if the duties were yet in the tenants hands. The defender alleged further, that she hath right to the mails and duties, because she offered her to prove, that the pursuer's father-in-law granted a back-bond, obliging himself and his heirs, to redispone these lands to umquhile Robert Lord Kirkcudbright, from whom the said lands were apprised, to which apprising the defender hath right, and thereby has right to the back-bond, and that the defender's wife represents her father as heir, or at least as lucrative successor after the back-bond; and so as he might thereupon have debarred the grant of the back-bond, so might the pursuer as representing him. The pursuer alleged, 1st, Non relevat, because the said back-bond is but a personal obligation, and the defender had thereupon no real right but only to the superiority; because, by discharge of the feu-duty produced, he acknowleged the pursuer to be proprietor. 2dly, If any such backbond was (no way granting the same,) he offered him to prove that it was conditional, so soon as the said umquhile Robert Lord Kirkcudbright should require: Ita est, he has never required. The defender alleged, he had done the equivalent, because in a double poinding formerly pursued by the tenants, he had craved preference; and the pursuer alleged, upon the condition of requisition in the back-bond, and also that by the back-bond the granter and his wife's liferent was preserved; whereupon the defender was excluded.

The Lords found the allegeance of the said double poinding was not equivalent to the requisition; and therefore found the replies relevant, and assigned a day to the defender to produce the back-bond, and to the pursuer to prove the quality thereof; and so found the reply not to acknowledge the defence, but reserve it to either party to allege contra producenda, and found the personal obligement sufficient to debar the pursuer, albeit the defender had no other real right, seeing thereby she was obliged to grant a real right to the defender.

Stair, v. 1. p. 72.