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The La. Balbegno pursuing after her husband's decease, the heir of Balbegno, to warrant the lands of her conjunct-fee, from all annuities, teinds, and feu-duties, whereto her husband had obliged himself and his heirs to her in contract of marriage, and whereby she might bruik the conjunct-fee-lands provided to her, viz. the mains of Balbegno, and that the same might be made free and sure to her, worth 12 chalder of victual, conform to her contract of marriage; and in particular, she pursuing for relieving her of the annuity, imposed by the commission of teinds, and of the duty appointed to be paid for her lands, to the reader of the kirk, and whereby she might bruik the lands free without these burthens, as said is;—and the defender alleging, that the burthen of the annuity being laid on by virtue of an law, he ought not to relieve her thereof; and the reader's burthen should be born by the Lady conjunct fiar, who bruiked the benefit of the lands, during her lifetime;—the Lords in respect of the words of the contract, found, that the heir should relieve the conjunct-fiar both of the annuity and of the stent for the reader, which they found that the Lady ought not to pay, but the heritor, seeing she consented not thereto, in respect of the clause foresaid of the contract, whereby her umquhile husband had bound himself and his heirs, to relieve the Lady of the annuity, and teind-duties, and that the lands should be worth 12 chalders of free victual; and that the Lady libelled, and replied that the lands were not worth that duty, beside these burthens.
Act. Nicolson, junior.Alt. Fletcher.Clerk, Gibson.
Durie, p. 849.
