Pactions, Declarations, &c. by Back-bond or otherwise, qualifying real Rights.
La Borthwick v. Scot
Date: 17 July 1632 Case No. No 31.
A factory granted to intromit with rents for payment of certain debts, was found no real right.
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The Lady pursuing for the mails and duties of the lands of Cathcum, conform to her conjunct infeftment, after the decease of the Lord Borthwick, her husband; and the defender alleging, That her umquhile husband had, for causes most onerous, viz. for satisfying of a debt owing by him to the excipient, granted a power and letters of commission to him, to intromit with the duty of these lands, for payment of these debts, ay and while he were satisfied thereof; and that they were not yet satisfied, and therefore the duties ought to pertain to him, and not to the Lady;—in this process, it being questioned, if this factory could be obtruded against the Lady, who alleged the factory not to be a real right, and that it could not be obtruded against her, no more than a right to bruik lands, made to a creditor, to be possessed for payment of an annualrent of money lent, ay and while the money were repaid, could be admitted against a singular successor, as she alleged herself ought to be considered, seeing she alleged that her right flowed not from her husband, but proceeded upon the Earl of Lothian her brother's resignation, who was heritor of the lands, and resigned the same for infeftment alike principally, to be given to my Lord her husband, and to her, and to the longest liver of them;—and the other party answering, that the factory was real, being for a cause so onerous, specially against the Lady, who could not be reputed a stranger, nor singular successor, seeing her infeftment behoved to be reputed to flow from her husband, seeing the Earl of Lothian was obliged to resign in his favours and his heirs, and not in her favours, so that her infeftment behoved to be reputed her husband's deed:—The Lords repelled the allegeance; and found, that this factory was not real, and could not be respected against the Lady, nor her infeftment, which the Lords found ought not to be respected as an infeftment or donation flowing from her husband, seeing she was equally infeft with him, and that he could not revoke the same, not being his own deed.
Act. Nicolson.Alt. Stuart.Clerk, Hay.
Durie, p. 647.
