Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

George Mitciielson's Heir
v.
Elisabeth Moubray

Date: 30 January 1635

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Elisabeth Moubray, spouse to umquhile Gavin Mitchelson, being infeft, in conjunct fee, in two tenements of land in Lowe's Close in Edinburgh, upon bond for sums of money, and subscribed both by her umquhile husband and her to umquhile George Mitchelson, parson in Middletone;—the heir of umquhile George comprises the said tenements from umquhile Gavin, and the said Elisabeth, in her husband's time; and, after his decease, pursues removing against the said Elisabeth, relict. It was excepted for her, That she cannot be decerned to remove; because she was infeft, in conjunct fee with her husband, long before the comprising. It was replied, That, notwithstanding of the allegeance, yet the same ought to be repelled; because the said apprising was both led against her and her husband, upon bond subscribed by them both; and farther, she has compeared judicially before the bailie and clerk of Edinburgh, and ratified the said bond and comprising, and the Lords' allowance on the back, and infeftment to follow thereupon. To the which it was answered, That the exception stands relevant, notwithstanding of the reply; because a ratification made by her, stante matrimonio, not being subscribed by her, nor by two notaries at her command, is null. Which duply the Lords found relevant.

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