A sasine propriis manibus by a husband, bearing to be in implement of a contract of marriage, was sustained as a title for mails and duties, if the contract should be produced cum processu.
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The Lady pursues the Commissary for payment of the duties of the lands wherein she was infeft, and which were uplifted by him diverse years since her husband's decease, wherein she produced only for her title her sasine, bearing to be given conform to her contract of marriage; against which the Commissary, who was infeft by a public infeftment proceeding on a comprising from her umquhile husband, alleged, That the same wanted an adminicle, and being only assertio notarii, that it proceeded on her contract of marriage, could not be a title to sustain this pursuit against him, except the warrant thereof were produced. The Lords took the pursuer's oath, if the contract were in her hands, which she declared she had not; and in respect thereof, the Lords found no necessity to produce the contract nor the adminicle of the sasine presently, but sustained the sasine for a title in this pursuit, and ordained the pursuer to prove her reply cum processu, that there was such a contract as the sasine proported, which was the warrant of the sasine, which the Lords admitted to be proved, and that the process ought no in the mean time to delay while that were proved, but ordained the cause to proceed.
Act. Nicolson & Pitcairn.Alt. Stuart & Learmont.Clerk, Scot.
Fol. Dic. v. 2. p. 245. Durie, p. 615.
