Debt contracted after Denunciation. - Alienation after Denunciation.
Cochran v. Dawling
Date: 6 December 1638 Case No. No 43.
Found in conformity with Lindsay against Porteous, No 36. p. 8354.
Click here to view a pdf copy of this documet : PDF Copy
Robert Dawling, by contract betwixt him and Violet Dawling his sister, is obliged to pay to her yearly L. 200 during her lifetime, for the annualrent of L. 2000 which she gave to him; which being yearly paid while he lived; after his decease his two daughters, his heirs, by decreet of the Lords, were decerned to pay the same; and according thereto, being paid by their curators, thereafter one of the daughters being married upon one Abercromby of Pitelpie, he and his wife give to the said Violet for her security an infeftment of L. 100 of annualrent, to be paid to Violet during her lifetime, out of a tenement in Edinburgh, pertaining heritably to the said daughter, spouse of Pitelpie; at which time of the said infeftment Pitelpie was at the horn year and day, and his escheat being gifted and declared to William Cochran donatar, he, in a special declarator for the mails of the lands, claims to be answered thereof, by virtue of the husband's escheat; which mails, during their marriage, he claims, as pertaining to the donatar, by the husband's rebellion. And the said annualrenter alleging, That she ought to be preferred to the donatar in the mails of the land, in so far as concerned her annualrent, in respect that the wife, who was her debtor, was never at the horn, and the cause of her debt was anterior to the horning; likeas the wife and her husband had given this infeftment of annualrent for obedience of a preceding sentence given against the wife before she was married; which being done ex necessitate, and not ex mera voluntate, the falling of the husband's liferent could in no reason extend to prefer the fisk to the lawful creditor ex anteriore causa, who had done such lawful diligence, as said is; and superinducing of a husband, who was the time of the marriage rebel, cannot prejudge her of that which was justly due to her by her lawful debtor, who had not failed, and was never at the horn, and who was but a consenter to that deed, done by his wife the principal debtor, and by him only for his interest;—The Lords found, That the donatar ought to be preferred to the annualrenter, during the lifetime of the rebel and his wife, being on life together; for by this marriage, as the husband had right to the mails, so the King by the rebellion had that right, and whatever deed the husband hath done since he was rebel, being married, albeit for a preceding necessary cause of his wife's debt, and for satisfying thereof, yet the fisk could not be prejudged in the foresaid casuality by that deed, especially seeing neither the wife nor her father were before obliged to grant such infeftment of an annualrent out of the lands libelled, controverted per expressum, but only were generally obliged to pay to her an annualrent of L. 200 yearly so long as she lived.
Act. Advocatus & Nicolson.Alt. Gilmor & Neilson.Clerk, Gibson.
Fol. Dic. v. 1. p. 555. Durie, p. 865.
