Scottish Court of Session Decisions

Subject_1 JUS TERTII.
Subject_2 SECT. II.

Competent to a Defender to found upon a third party's interest, or other argument, to show there is no ground of claim.

Mackay Lord Rea
v.
Innes of Sandsyde

Date: 13 February 1707
Case No. No 18.

Found competent to an apparent heir, in an action for liquidating the avail of a marriage, to plead, that his father had died not in the fee, being denuded by an adjudger.

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The Lord Rea, as donatar to the ward and marriage of Sandsyde, pursues for having the avail of his marriage liquidated. Alleged, There can be no casualty of marriage, because his father did not die the Queen's vassal in the ward lands, but was denuded by an adjudication led by Thomas Crawford, who was publicly infeft, and so came in place of the vassal. Answered, This is jus tertii to the apparent heir, to found on a third party's right, unless that person did compear and defend. Replied, He produced the sasine to instruct his allegeance, and had sufficient interest to propone it; for the avail of a marriage was not only a debitum fundi affecting the ground, but also made the heir personally liable to the single or double avail, if a suitable person was offered and refused.——The Lords found it was not jus tertii, but competent to the apparent heir to found upon it. Then it was alleged, No respect to the denuding, because the public instrument was not expede in the last vassal's lifetime, but since his decease, and posterior to the pursuer's gift. Answered, Nullo modo relevat, unless the infeftment had been taken after his declarator, which only put the defender in mala fide.—The Lords ordained the executions of the summons to be produced, that they might be compared with the date of the public instrument. 3tio, Alleged, No respect to your adjudication and infeftment thereon, because either paid within the legal, or led to the behoof of the apparent heir; and seeing the superior would have got the casualty of marriage by the adjudger's death, if after the legal, he cannot crave it likewise from the apparent heir; for that were to give it twice. The pursuer denying the allegeance, the Lords thought the execution by payment within the legal did take off the casualty, but demurred as to the relevancy of the trust and behoof, if that made the infeftment accresce to the apparent heir, and allowed it to be further heard. See decision in Stair, 13th, 14th, and 28th July 1680, King's Advocate contra Yeaman, voce Vassal, where intromission was found relevant to take off the casualty; though it was judged a stretch to find it fell by the appriser's death within the legal, till the expiration whereof, the vassal, against whom the apprising was led, continued still proprietor, and by his death only the ward and marriage opened; and the adjudication or apprising, till the ten years be run out, is no more but a pignus prætorium, or a security to the creditor for his debt; and the Crown has still the debtor to be its vassal during the legal, and ought not to claim the casualties by both the debtor's and the creditor's death, but must be content with one, though some have demanded both.

Fol. Dic. v. 1. p. 516. Fountainhall, v. 2. p. 349.