Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION V.

Proved, or not proved.
Subject_3 SECT. X.

Relative to Land.

L Foulis
v.
Lo Lovat.

Date: 15 December 1626
Case No. No 633.

That an infeftment was granted for a particular cause, must be proved scripto vel juramento.

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In a declarator of the Laird of Foulis's liferent, pursued to the behoof of his Lady, compeared the Lord Lovat, as being infeft by a public infeftment in the lands, whereof the mails and duties were acclaimed by the donatar, in this action of special declarator; and, in respect thereof, alleged, That he ought to be preferred to the donatar. This allegeance was repelled, in respect of this underwritten reply, viz. That the pursuer offered to prove, that that infeftment was granted to the Lord Lovat, to the effect, that thereby he might relieve himself of certain debts, wherein he was obliged to the Creditors of the Laird of Foulis; so that he ought to have intromitted, conform to his right, with the farms of the said lands, and profits thereof, and thereby satisfied the Creditors to whom he was bound, as said is, and which he might have done, if he had intromitted, (the said farms being of that avail, which would have defrayed the same;) whereas, by the contrary, he suffered the Laird of Foulis to retain and keep the possession of the said lands, and to uplift all the duties thereof; and he did no diligence upon his infeftment to recover the same, and to apply the same to the use foresaid; so that he had prejudged himself in the right of the said infeftment, and the King and his donatar ought to be preferred to the same. This reply, seeing it was not proponed by a creditor of the Laird of Foulis, but only being proponed by the donatar to his liferent, was only found relevant for the years since the Laird of Foulis was denounced rebel, and no other preceding years; in the which the Laird of Foulis intromitted with the profits of the lands since the right foresaid made to the Lord Lovat; for, before the rebellion, the Lord Lovat might have suffered the Laird of Foulis, or any person, to meddle with the said lands, which would not have derogated from the strength of his infeftment in any sort; for thereby no person was prejudged, his said author that space not being rebel, and no creditor opponing the same: But since his rebellion, the Lords found, that the intromission had by the Laird of Foulis, and the not doing of diligence by the Lord Lovat, to recover the same, did prejudge him; that he could not cloath himself therewith, for relief of so much of the debt addebted to the Laird of Foulis's Creditors, as the quantity of the farms intromitted with by the Laird of Foulis would extend to proportionally, since the time foresaid of his rebellion allenarly, whereof the Lord Lovat had prejudged himself, as said is; and if any creditor had proponed this reply, the Lords would have found the same relevant for all the years of Laird Foulis's intromission, since the time he was constituted debtor to the creditor, who had proponed it; but that the infeftment was granted for the cause foresaid, the Lords found that ought to be proved by writ, or by the oath of the Lord Lovat; and that the Laird of Foulis intromitted, and the quantity whereto his intromission extended, the Lords found that might be proved by witnesses, and was not of necessity to be proved by writ or oath of party.

Act. Russell. Alt. Lawtie. Clerk, Gibson. Durie, p. 247.