Subjects purchased partly before and partly after the Marriage, how far reputed Conquest.
La Dumfermline v. The Earl
Date: 30 June 1629 Case No. No 15.
Lands were sold to a vassal, but the feu never confirmed. The superior was bound to infeft his wife in conquest, in which this feu, which retutned to him, was found not excluded.
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In this case, the Earl of Dumfermline having suspended the charges given him, for infefting the Lady his mother in the lands conquest by her husband after their marriage, it was found, that the lands, wherein the umquhile Earl was infeft before the marriage, being thereafter, or before, to a vassal, whose feu was never confirmed, and so whose right, being of kirk-lands, was null, and would not have excluded the umquhile Earl's right; the acquiring of this feu by the Earl, after the marriage, from the said feuer, was not found to be a conquest, whereby the heir of her husband might be holden in law to give her infeftment, or wherein the clause of that contract could strick, as if it had been conquest, seeing he being infeft in the property of that feu, whether it preceded or had been after the Earl's right, not being confirmed, took not away the right subsisting in the Earl before the marriage; and that right was not found to be of the naked superiority, except that the Lady would say that the feu was confirmed; and albeit, the Earl had satisfied the feuer to the full avail of these lands, yet that made it not to be a conquest of any such right and security of lands as might fall under the clause of the contract in favours of the Lady; neither was that satisfaction, or the umquhile Earl his receiving of the feu-duty diverse years from the feuer, and giving acquittances thereon conform to the feu, found to be an approbation of that feu; and that thereby he might not quarrel the same, the said feu being set by himself, when he was abbot, and having after the feu acquired an heritable right upon the annexation, whereby the Lady alleged, that he could never quarrel the feu set by himself, for not confirmation, it being his own deed. Likeas she alleged, that that supervenient right of the Earl's, who set the feu, viz. of his erection, whereby the necessity of confirmation ceased, behoved to accresce to the feuer, quia jus venditori superveniens emptori prodest, and therefore she alleged, that the feuer's infeftment was good against the setter and his heirs, and they could not quarrel the same for not confirmation, both in respect of the superveniency of the right to himself, and also in respect of the said tacit ratification; which answer for the Lady was repelled; for it was found, that albeit the Earl set the feu, yet though he could not quarrel it by any deed done by himself to the prejudice thereof, yet he might quarrel it upon the nullity of the law and statute of Parliament for not confirmation, which was the feuer's own deed; so that as any other, having received a valid right of these lands, might quarrel the said feu, so might the setter thereof, having received a right which another might have received; and the acquittances of the feu-duties, conform to the feu, were not found a ratification thereof, and this was the rather so found against this charger, where the dispute was not betwixt the granter of the feu and the feuer, but by the Lady claiming conquest by the purchasing of that feu by her husband, as of a lawful right of the lands, which could not be quarrelled by him or his heirs, for the causes foresaid, which was repelled by the Lords.
Act. Stuart et Aiton.Alt. Advocatus, Nicolson, et Burnet.Clerk, Hay.
Fol. Dic. v. 1. p. 198. Durie, p. 453.
