Scottish Court of Session Decisions

Subject_1 IRRITANCY.
Subject_2 SECT. VI.

Irritancy ob non solutum canonem, when purgeable.

Prior of Pluscardine
v.
Sheriff of Murray

1586. January.
Case No. No 55.

Conventional irritancy found not purgeable.

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The Prior of Pluscardine pursues the Sheriff of Murray to hear and see a charter set by the said Prior's predecessors, in feu farm, to the umquile Dunbar, Laird of Cumnock, and Sheriff of Murray, guidsir to the defender, in feu farm, of the fishings of Spey, as proper part of the patrimony of the said benefice, to be reduced. The reason of the summons was, because of a clause irritant that was contained in the charter, that if three years ran unpaid of the feu-duty, the said charter should expire, and the said fishings return again, as if they had never been set; and true it was, that the duties of the said fishings had remained unpaid, ay since the first setting of the said feu, both in the time of the defender's guidsir, his father, and himself. It was excepted against the reason of the summons, That as to the time of not payment of the guidsir, it could not prejudge the defender, quia unicuique sua mora est, et noxa caput sequitur; and his guidsir was but a liferenter, and the deed of the liferenter ought not in any manner or sort to prejudge the heritable feuer; and as to his own time, he was ready instantly ad purgandam moram, and presently offered in presence of the whole Lords, in pecunia numerata, the whole by-runs, which extended to the sum of; and the fault in times bygone of the not payment ought to be rather imputed to the pursuer, because he had ay since his entry to the benefice, holden the defender and his predecessors in continual plea, and intented action to produce his feu-charter upon other heads, whereby he was not bound to acknowledge him to be his lord and master, quia mutua et reciproca est inter dominum et emphituetam obligatio, et sic factus fuit fundus litigiosus, and the fault of not payment is by the pursuer, and not the defender, who would not receive him tenant, nor acknowledge him to be his vassal, like as the defender was never as yet received tenant or vassal to the pursuer, whereby his feu could not cadere in eommiss. quia privatio presupponit habitum.

To all this was answered, That the reason of the summons was founded upon the express words of the clause irritant contained in the infeftment, which was when either the guidsir, who was the first acquirer of the feu-farm, or any of his heirs and successors failed in non soluto canone, that the feu should cadere in commiss.; so, by reason of this bond appositum contractui, the fault of the guidsir, albeit he was but liferenter, would prejudge the feu. as well as the fault of the heritable successor, quia bæres hic representabat personam defuncti et a ejus factum tenebatur; and where it was alleged that the defender was ready ad gandum moram, and presently to pay the by-runs, it was answered, that there was here dies et pæna adjecta, et sic nullo modo locus fuit purgare moram, ut in L. 8. D. Si quis cautio. et mense Decembris, inter Hay et Moffat, infra. Reus etiam allegebat Bald. in L. 12. C. De contrahendo stipulatione, qui multas ponit ab hac regula exceptiones, viz. quando reus vul purgare moram, non ut suam, sed ut alterius sibi nesciam, ut in presenti casu, mora contracta fuit, et initium cepit ab auctore rei; et hæres res qui in alterius locum succedit, justam habet ignorantiæ causam. The Lords, after long reasoning at the bar, found the reason of the summons, by reason of the clause irritant, to be relevant, and so reduced the foresaid infeftments.

Fol. Dic. v. 1. p. 488. Colvil, MS. p. 414.