Scottish Court of Session Decisions

Subject_1 LOCUS POENITENTIAE.
Subject_2 SECT. IV.

Pacta Liberatoria.

Ker
v.
Hunter and Tenants of Cambo

Date: 8 February 1666
Case No. No 54.

Found in conformity with the above.

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The tenants of Cambo raised a double poinding against Ker, and Hunter, both being infeft in annualrents, base, where the last base infeftment within a month of the former, being clad with possession by a decreet of poinding the ground, a year after both, and no diligence on the first,

The Lords preferred the last infeftment, as first clad with possession.

It was further alleged, that this annualrenter had accepted a part of the land in satisfaction of his annualrent. It was answered, that there was writ there required, viz. a renunciation of the rest, and till that was done, est locus pænitentiæ.

The Lords considering the case, found, that if the promise were only to restrict the annualrent to a part of the land burdened therewith, it was pactum liberatorium, and there was not locus pænitentiæ; but if it was a promise to accept other lands, or the property of a part of the lands burdened, there was locus pænitentiæ till the mutual rights were subscribed, whereby the one party disponed the property, and the other the annualrent.

Fol. Dic. v. 1. p. 564. Stair, v. 1. p. 352.