Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VI.
Possession upon a Right null ex facie.
Grant v. Grant
Date: 16 November 1633 Case No. No 24.
A wife's right in lands by infeftment, in terms of her contract of marriage, extinguished by her husband's death within year and day, found not to afford such a colourable title as to infer bona fide consumption of the fruits.
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One Grant, by his contract of marriage with——his future spouse, being obliged to infeft her in lands which he had in wadset from the Laird of Grant, and the contract bearing, that he should take a new security of the lands from the L of Grant, to himself and to her, and the longest liver of them, and the heirs to be procreate betwixt them, which failing, to his heirs; and, after the perfecting of the marriage, he having, within three or four months thereafter, obtained infeftment thereof to him and her in liferent, and to his heirs, failing of heirs betwixt them; which infeftment had no relation to the said contract, nor made mention thereof: Thereafter the husband dying within the year after the said marriage, and another Grant being infeft by the superior in that land, as heir to that husband deceast, being his brother, or uncle, there being no bairns of the marriage; which infeftment was granted upon the superior's precept of clare constat, and not upon retour; and this heir, diverse years thereafter, pursuing the relict for the mails and duties of the lands foresaids, of all the years after her husband's decease, and which were intromitted with by her, and which she had good right uplift, as she alleged, by virtue of the said saline, both for by-gones, and also in time coming: And the pursuer replying, that her sasine was become invalid and extinct by the husband's decease within the year, as said is, which put both parties in that case for conjunct fee and tocher, as if no marriage had ever been contracted, and restored them to their own rights thereof binc inde: And she duplying, that her sasine had no relation to that marriage, nor depended thereon, and albeit it should depend upon that contract, yet it was sufficient for all by-gone years before this pursuit, which she had uplifted and consumed, and must of reason be reputed to have been uplifted bona fide, by virtue of her right foresaid standing unquarrelled, and she never being interrupted in her possession before this pursuit.—The Lords repelled the exception and duply, and found the reply, upon the husband's decease within the year, relevant; which reply was not only sustained for the years to come, but also for all by-gones, for which the Lords found the relict had no right, and that she could not meddle with the same bona fide, in respect of her husband's decease within the year; and, therefore, that she ought to refund the same, albeit her possession was never interrupted before this pursuit, and albeit also that she alleged, that the pursuer, by virtue of his sasine only upon a precept of clare constat, not being retoured, ought not in reason to claim the bygones before the precept, since her husband's decease, but that her intromission therewith was favourable, for these years before his right; which allegeance was repelled, and the saids years since the husband's decease were all found due to the heir, albeit only received by the superior's precept, seeing the superior nor none other claimed these bygones by non-entry; and also this sasine, albeit making no mention to be given to the wife intuitu matrimonii, nor having any reference to the contract, yet expressing no other cause, and no other cause thereof being qualified by the party, and being the same deed, whereto the husband was obliged in the contract, the same was found to be done for implement thereof, and to depend thereon.
Act. Gibson.Alt. Baird.Clerk, Gibson.
Fol. Dic. v. 1. p. 109. Durie, p. 692.
