Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Countess of Dumfermling
v.
The Earl of Dumfermling, Her Son

Date: 12 March 1628

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The umquhile Earl of Dumfermling, Chancellor, in the contract of marriage betwixt him and my Lord Yester's sister, obliges him to provide his future spouse, in conjunct fee or liferent, of all the heritages that he should happen to acquire during the time of the marriage. Before he was married, he had right to the teinds of Fyvie, by tacks. After the marriage, he obtains the heritable title of the said teinds from the Marquis of Hamilton, as having the erection of Aberbrothick. After the Earl's decease, the relict pursues her son, to infeft her in the heritable right of the teinds of Fyvie, conform to the contract. Her son is content, reserving the right of the tack which his father had acquired before the marriage;—and alleges, That his mother could have no more benefit by the infeftment but the duty which was obliged, by the tack, to be paid. The lady alleged, That the posterior heritable right did diminish the former tacks. The Earl alleged, That the prior tacks did only sleep so long as the heritable right stood in the person of him that has right to both; but, if the heritable right be reduced, then the tack may waken and revive; or, if the heritable right be disponed to another person, the tacks may be reserved. Which last allegeance the Lords found relevant.—12th March 1628.

And the like was found, 21 st December 1634, Young Lesmore against James Hutcheson.

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