Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

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

1629. July.

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The Earl of Dumfermling being obliged, by contract of marriage, to infeft his Lady, in conjunct-fee with himself, in all lands conquest by him during the marriage: She pursued her son, as heir to his father, to infeft her in the mill and mill-lands of Fyvie, as being conquest in her husband's time from N. Alleged, It could not be reputed conquest, because he offered to prove that N. had no valid feu of the said mill, &c. lawfully confirmed before the act of annexation and erection of Fyvie in the Earl's favours; in respect whereof that N. had no good right to the said mill, but the Earl might have challenged it as his own at any time; and so not conquest. Replied, It behoved to be accounted conquest, because he acquired the same of N. by receiving a resignation ad perpetuam remanentiam, and by giving him sums of money therefore. Duplied, The receiving of a resignation, ad remanentiam, was not an acknowledgment of N.'s right to be good, and for sums of money given; therefore it was to be accounted for his kindness only, and not for his right, which was null. The Lords found the exception relevant:—1st July 1629.

Afterwards it was replied by the pursuer. That N.'s feu, being granted by the Earl of Dumfermling, then prior of Pluscardy, before the act of annexation, although it was not confirmed before the annexation, yet the infeftment was valid; in so far as, after the erection of the same benefice in the Earl's person, he received the feu-duties of the same mill from N. and gave discharges to him of the same, whereby he did approve the feu set before by himself, although not confirmed; so that neither he nor his heir might ever, after that, challenge the same for lack of confirmation. The Lords found that, notwithstanding of the foresaid discharges, the Earl's heir might quarrel the said feu given by his father, for any nullity, as well as a singular successor might do: eodem die.

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