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Christian Home being infeft in life-rent in four husband lands in Edrom, pursued a removing from these lands against Helen Ramsay. Alleged, That the pursuer and umquhile Robert Home, her husband, by a contract, did oblige them to set a tack of the same lands to the defender for all the days of his life. Replied, That the contract was conditional, bearing, that in case Elizabeth Home, daughter to the defender, and Mr. David Home of Crossrig, (brother to the said umquhile Robert) should marry with consent of the said umquhile Robert Home, that then he obliged him to set a life-rent tack to the defender; but if it happened that she, should marry without his consent, then and in that case, the contract to be null in that point; and so, unless the defender would allege that Elizabeth had married with Robert’s consent, the obligement was null, in so far as concerned the tack. Duplied, It must be presumed that his consent was given to her marriage, in so far as she was married with his kriowlege, being thrice proclaimed, and he never opponing against it, neither at that time, nor after while he lived. The Lords, notwithstanding, repelled the exception, in respect of the reply, except the defender did offer that Robert’s express consent was obtained to the marriage.
Spottiswood, p. 287.
*** Durie’s report of this case is No. 22. p. 2964. voce Condition.
