Macdougall v Earl of Breadalbane
| Jurisdiction | Scotland |
| Judgment Date | 04 November 1880 |
| Docket Number | No. 22. |
| Date | 04 November 1880 |
| Court | Court of Session |
Ld. Curriehill. M., Lord President, Lord Deas, Lord Mure, Lord Shand.
Superior and VassalNon-entryProof of Superior's title.
In 1821 a vassal entered with a superior. The lands were subsequently sold, and no other entry was asked by the superior until 1879, when an action was brought for payment of casualty against a singular successor of the vassal in question. It was not stated when the latter died. Held that the defender was liable unless he could shew that the superiority belonged to some one other than the representative of the superior with whom the previous entry had been made.
The Earl of Breadalbane was superior of the six merk land of old extent of Soroba and others, in the parish of Kilbride, lordship of Lorn, and sheriffdom of Argyll, and now claimed payment, under the 4th section of the Conveyancing Act, 1874, of a casualty, being one year's rent of the lands, of which the entry was untaxed, from Alexander William Macdougall of Soroba.
Major Duncan Macdougall was the vassal last seised in the lands, conform to precept of clare constat by John fourth Earl of Breadalbane, dated 20th August 1821, and instrument of sasine following thereon. He had since died, but the date of his death was not stated.
In 1824 Major Macdougall had sold the lands to Hugh Munro of Barnaline, and his trustees in turn sold to the defender, who was now infeft.
The defender denied that his lands were held of the pursuer. He averred that Macdougall of Dunollie was his superior, and he produced certain titles shewing that Dunollie held the six merk lands of Soroba directly under the Duke of Argyll from the beginning of the last century, and had acquired the superiority and been entered with the Crown in virtue of a conveyance by the then Duke of Argyll in 1819, and had thereafter consolidated the superiority and mid-superiority by resignation in his own hand.
A proof was led, at which certain titles were produced, which are sufficiently narrated in the Lord President's opinion.
The Lord Ordinary, on 17th June 1880, decerned in terms of the declaratory conclusion, and gave decree for payment of 284, 13s., being one year's rent of the lands after deductions.
The defender reclaimed, and argued;The pursuer had not established that he was superior of the defender's lands. He must do so before he could get decree.
Lord President.Is it not enough to shew that there is a superiority of these lands vested in...
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