Scottish Court of Session Decisions

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

Anderson
v.
Henry Gibson

Date: 22 March 1637

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In a double poinding betwixt one Anderson and Mr Henry Gibson; umquhile George Reid in Glasgow, having acquired from Marion Dorroch her liferent of some lands in Glasgow, whereof himself was heritor, for which, by that security, he was obliged to do certain deeds to the said Marion; after which contract the said George Reid being deceased, and the said Marion Dorroch being married upon John Anderson, burgess of Glasgow, the said Marion and her said spouse dispone her said liferent right to the said Mr Henry Gibson, and oblige them to warrant the same from all preceding deeds: and the prior disposition being comprised by Gabriel Cunninghame for a debt owing him by the said George Reid: Whereupon it being questioned, if the said John Anderson should be holden to warrant the alienation thereafter made to Mr Henry of that same liferent, from that prior disposition; and sicklike, because there was an action of double poinding against Gabriel and Mr Henry, as both claiming the right of the mails and duties of that liferent, by virtue of their said rights;—in which action the Lords found that Mr Henry had best right to be answered; and preferred him to Gabriel Cunninghame, because the right made to umquhile George Reid, by the said Marion, and which was comprised, was found not effectual to denude her of her liferent, or to make it vailable to the said George, to be comprised by his creditor; seeing the said umquhile George was obliged to do some deeds to the said Marion, for the said disposition, which was never yet fulfilled to her, but the said George died before the fulfilling thereof; likeas, the same was consigned to remain in the hands of a third person condescended upon, while it were fulfilled: And albeit the compriser alleged, that that ought not to stay the effect of his comprising, seeing now he has the right, and she has action to seek performing of the deeds obliged by George Reid to her, against his heirs or executors;—yet the Lords found, that she was not prejudged by that disposition, it not being fulfilled to her reciprocally, and consequently that the compriser had no right: And albeit the compriser offered now to perform the same things to her which George Reid was obliged to, yet the Lords respected not the same, in respect it was not fulfilled to her by himself in his own lifetime; seeing she, bona fide, thereafter disponed it to Mr Henry Gibson, thinking the same to be extinct by his decease, and by the consignation thereof, while it had been fulfilled; neither was it respected that the disposition was now in the compriser's hands; seeing the relict and her spouse offered to prove that, after George Reid's decease, Mr Henry Gibson broke up the coffer where the writs were consigned, and took out the same; and, by what condition he knows not, the said Gabriel Cunninghame has comprised it. Which the Lords found relevant to prefer Mr Henry to Gabriel, and to make his comprising to cease, as of a null right, for the foresaid reason received against the comprising and disposition, hoc ordine, as said is.

Act. Cunninghame. Alt. Maxwel. Scot, Clerk.

Vid. 22d February I627, L. Aitkin, and the cases there.

Page 841.