Found in corformity with Cranston against Home, No. 1, p. 11823. See No 11. p. 11833.
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The Lady Yester, after the decease of her last husband, the Master of Jedburgh, pursues removing against Kerr, frae the lands wherein the Lady was infeft, conform to the contract of marriage. It was excepted by the defender, that he could not be decerned to remove, because by the contract betwixt him and Jedburgh, the said lands were disponed to him before the contract of marriage betwixt the Lady Yester and her spouse, the Master of Jedburgh, and, by virtue of the said contract, he was in possession; like as, he stands now infeft in the lands; albeit his infeftment was posterior to the pursuer's infeftment, yet the same depended upon a cause, viz. the contract of alienation, whilk was prior to the pursuer's contract of marriage, and infeftment following thereupon, and so ought to be drawn back to its own cause, and should defend him in this judgment possessory. It was replied, That because the contract of alienation was no real right to debar the pursuer frae enjoying her infeftment, proceeding upon her contract of marriage, which was so favourable, that by the law and practice of this realm, wives were not holden to reduce infeftments, given by their husbands, in prejudice of the infeftments granted conform to the contract of marriage, although clad with possession; but immediately after their husband's decease, they are in use, upon their right, to pursue either upon removing, or for mails and duties of the lands wherein they are infeft, conform to their contract of marriage, and need not to pursue for reduction of rights posterior to their infeftment, although cald with possession. The Lords repelled the exception.
