Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk of Session, One of The Reporters For The Faculty.

The Countess of Moray
v.
Tenants of Glenfinlas

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In the case of the Countess Dowager of Moray against the Tenants of Glenfinlas, it was contended, that, where a wife stands infeft in lands by way of locality, it is not in the power of the husband, without her consent, to set tacks of the locality lands, available against her when the locality opens.—See Mack. Obs. p. 104; Craig, p. 276; Stewart's Ans. p. 193; Fount. V. I, p. 85; and 16th June 1688. The Lords, by interlocutor, 23d July 1772, found, “That the late Earl of Moray, notwithstanding of the prior liferent, by way of locality, granted to the Countess, and her infeftment thereon, had right to grant tacks of the lands, contained in said locality, effectual against the Countess.—Affirmed on an appeal. But find, That the tacks in question, not having been regularly executed by the Earl, are not effectual against the Countess.—Reversed on appeal. In this cause it was admitted in the argument, and understood, both in the Court of Session and House of Lords, That, as a husband has no power to disappoint the wife's locality in whole or in part, even by onerous deeds subsequent to her infeftment, far less by gratuitous or fraudulent deeds. So he cannot, under colour of a lease, give away part of her liferent locality by setting the lands out of the ordinary course of administration and at an under value.*

And, accordingly, when a case occurred,

* In this case the tacks were duly extended and signed by the tenants, agreeably to the Act 1681. They were delivered to Lord Moray, and kept by him in order to be subscribed, but bad health delayed it. The tenants had not only entered into possession, but laid out considerable sums in repairing dykes. This was held a rei interventus, and made the tack good in the judgment of the House of Peers.