Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Laird of Renton
v.
The Laird of Wedderburn

Date: 22 July 1635

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The L. Renton, being made assignee by one Heriot, to a contract betwixt Heriot and the L. of Wedderburn, whereby he made to Heriot an heritable feu of an husband-land in ——, for payment of the feu-duty therein contained, and bearing no other clause obligatory upon the part of the feuar; upon which contract there was a charter subscribed to Heriot, bearing some clauses different from the tenor of the contract, as a clause irritant to amit the feu if the feu-duty should not be paid two years together, and that the feuar should compear in the Laird's courts, &c.; and upon the charter Heriot being infeft and seised, and by virtue thereof, since the date thereof, ten years in possession of the land,—thereafter Heriot makes the Jaird of Renton assignee to the contract, who charges Wedderburn to give him, as assignee, infeftment of the land, conform to the tenor and clause of the contract; alleging that the charter subscribed and given to his cedent was different from the tenor of the contract, and therefore he ought to give him another charter agreeing with the contract: Who alleging that such summary charges ought not to be sustained at the assignee's instance, seeing there was an heritable infeftment and sasine expede upon the contract, which, being a real security, could not be transmitted by a simple assignation, to produce such summary charges; but if any difference was therein from the contract, the assignee ought to pursue by way of action and ordinary pursuit therefore, to hear it be found that the contract was not fulfilled, or by any other pursuit which he might best move in law thereanent; but it ought not to be sustained, after this manner, by charges upon an assignation:—This allegeance was repelled, and the order and charges were sustained, without necessity of any other action to be made thereanent. And because Wedderburn alleged that the cedent, having accepted a charter from him, whereupon he wras seised ten years since, and bruiked it, and possessed the lands ever since, conform thereto; so that this being done, inter majores prudentes et scientes et tacentes, and wherewith he acquiesced, therefore it ought not to be permitted to an assignee to charge for any other charter than for that which was accepted by the cedent, as said is, albeit it be of a tenor different from the contract;—the Lords, before they decided this allegeance, found that they would examine the cedent, who was a mean, simple, ignorant man, who could neither read nor write, and the notary, writer of the charter, who was also notary to the sasine, and the witnesses inserted therein,—to try if the charter, at the delivery thereof to the cedent, was read to him, and if he knew the contents thereof and was acquainted with the clauses which differ from the contract, and rested content therewith; or if he was any ways ignorant thereof, and the clauses kept obscure from him.

Act. Advocatus. Alt. Stuart. Gibson, Clerk.

Vid. for the first part of this decision, 15th July 1642, La. Garleis; and 21st March 1635, Lo. Tester.

Page 775.