Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Lady Borthwick
v.
The Laird of Gallasheills

Date: 4 March 1635

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Lady Borthwick being infeft in the lands of Coblehaugh and others, and pursuing the Laird of Gallasheills for the mails and duties of certain of these lands;. who defending himself with a right of a tack of the same, set to him by Walter Cairncross, son to umquhile——Cairncross, which setter foresaid was heir to his umquhile good-sir, who was heritably infeft in these lands by the umquhile Lord Borthwick, heritor of the same: And the Lady replying, that he could not clothe himself with any right flowing from Walter Cairncross, because sentence of reduction was obtained at Gallasheills's own instance and the E. of Lothian's instance, against the son and apparent heir of the said Walter, and also against the Lord Borthwick, husband to this pursuer, reducing the Lord Borthwick's heritable infeftment of the lands, and reducing, per consequentiam, expressly also the heritable right of the said lands, made by the Lord Borthwick to the said Walter Cairncross; after the which sentence reductive, the said excipient was decerned by a decreet-arbitral betwixt him and the Earl of Lothian, and this pursuer's husband, to quit all the rights which he had to the lands, in favour of her said husband, that he might be infeft validly in the same lands of the lordship of Borthwick; and that this pursuer, spouse to the said lord, might be infeft in conjunct-fee of the lands decerned thereby; likeas, accordingly, she is infeft in thir lands libelled, acclaimed as a part of the lands provided to her in liferent; in respect of which decreet of reduction, obtained at his own instance, and deed done by him depending thereon, he could never thereafter lawfully acquire any new right of the lands, the rights whereof were reduced by that sentence reductive, procured by himself, and the deeds done thereupon by himself depending thereon: And the defender answering, that he comes not against any right which ever he had devolved in the person of the Lord Borthwick, after that sentence; but that it was lawful to Cairncross, against whom that sentence was recovered, or his heir, to reduce that decreet reductive, upon good reasons, relevant in law; so it was lawful to this excipient to acquire that right from them, wherein he cannot be prejudged, if the right be in law valid to maintain his possession thereby, notwithstanding that he had obtained the sentence reducing that right; and which sentence reductive he now desired to be reduced, to the effect the heritable right, made to the said Walter Cairncross, might remain and be tried to be good and lawful, and not to fall for any reason contained in that sentence, whereby it was reduced: And he alleged, that it were great injustice, that, because the right was become in his person, therefore that it should not have the course and effect of a good and sufficient right,—it being so in itself,—but that it should fall, because he had acquired it: likeas he further alleged, that he was but tacksman to the said Walter Cairncross, and so tenant only to him, and that the heritable right subsisted in the said Walter's own person; for which Walter, the advocates and procurators compearing in this process declared they compeared expressly, and proponed the exception for him, and insisted in the said reduction of the decreet reductive at his instance, the same being specially raised in his name: And the pursuer answering, that, albeit Walter Cairncross be reducer, yet his name cannot be obtruded against the pursuer, because he was denuded of all right competent to him, in favours of Gallasheills, who can never be heard to evert his own deed, as said is. The Lords repelled the foresaid exception, either proponed for Gallasheills or for Cairncross, in respect of the reply, viz. That Cairncross was absolutely denuded of all his right in favours of Gallasheills; and found that Gallasheills could not vailably nor dutifully acquire from him his right, thereby to prejudge the effect of the sentence, reducing the same right obtained at his own instance. Which sentence he was found he could not quarrel, himself, neither directly nor indirectly; nor upon any ground of right acquired by him from any person, which might lawfully have impugned the same; albeit purchased by him after that sentence, and not being in his person at the time of the obtaining thereof, nor yet being acquired by him at any time, when he contracted thereafter with the Lord Borthwick, no more than if the said rights had been then standing full in his person, and as if the right had been acquired by him the time of the sentence, and when he contracted thereafter with the Lord Borthwick: Quo casu, he could not have come against the decreet and deeds thereafter done: Even sicklike the Lords found he could not be heard to come against the same, upon any purchase of any other man's right acquired thereafter; for, albeit the party principal, to whom the right belonged, might have quarrelled that decreet which was given against him, yet it was not found alike competent to that party who had obtained the sentence, and had transacted therefore.

Act. Nicolson and Mowat. Alt. Advocatus, Stuart, and Cunninghame. Hay, Clerk.

Vid. 5th March 1629, La. Borthwick; 11th December 1634, L. Lesnoris.

Page 758.