Divorce. - Failzie. - Redemption. - Extinction by Intromission. - Gift of Forfeiture.
Lady Restalrig v. The Laird
Date: 6 February 1579 Case No. No 14.
Aftersentence of divorce pronounced proptor culpam mariti the wife may immediately enter to the possession of her liferent lands without any declarator.
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The Lady Restalrig wairnit the laird of Restalrig, some time her husband, she being divorced fra him ex culpa viri, to flit and remove fra certain lands. The laird answerit, that albeit he was divorced, yet there was no declarator given, wherefor he should not bruik the lands that she was in; and of the practick that had passed before, ay after the sentence of divorsement pronounced and given be the commissars, there behoved ane declarator of the civil judge to follow upon these lands, because the commissars being judges spiritual, their decreet could not be extended ultra fines suæ jurisdictionis, et quæ civilia fuerunt et profana, non debebant ab iis tractari extra de ordin. cognit. To this was answered, that first to the practics, that they were not alike, for in all the practics before past, both the parties, vel saltem the party failzier was in the land, either be conjunct fee or otherwise; but in this case the Lady Restalrig was only in the land, and so being only infeft, there misterit na declarator more nor if her husband the laird had been naturally dead. And as to the law, it was nothing against the law, that the commissars' decreet should, be their ain sentence, take effect quia unicuique judici licet sententiam suam executioni mandare. The Lords pronounced be interlocutor, that in respect the Lady was only in the lands there misterit na declarator, albeit the same appeared to repugn to all the preceptspast of before.
