Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

Charles Wardlaw
v.
Walter Dalglish

Date: 23 June 1663

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The deceased William Wardlaw, being debtor to Walter Dalglish in a sum of money by bond, which was conceived in favours of the said Walter, and Mary Home, his spouse, in liferent, and Christian Dalglish, their daughter, in fee; with power, nevertheless, to Walter to dispone thereupon at his pleasure;—upon this bond a comprising is led of the debtor's lands of Logie, in favours of the foresaid persons ut supra, without inserting of the liberty and power foresaid, in favours of the said Walter; whereupon they are all three infeft. Thereafter, by a sale of a part of the comprised lands, Walter is satisfied; and yet, in his time, his wife and daughter are not denuded; whereupon Charles Wardlaw, sonin-law to William, pursues the wife and the daughter to denude themselves, in regard Walter was satisfied. It was alleged, That they should be assoilyied, in respect, by the comprising, Walter was only liferenter with his wife, and could do no deed in prejudice of his wife and daughter. It was answered, That, by the bond, he had power to dispose upon the money, notwithstanding of the joint liferent of his wife and the fee in favours of his daughter; and that clause anent the power of disposal, in favour of Walter, ought to be holden as repeated in the comprising as in the bond,—the bond being the ground thereof, though, by negligence, the clerk has omitted the same; and parties not being obliged to look after such formalities, the clerk's negligence should not prejudge them, the matter itself being so clear. The Lords repelled the allegeance, in respect of the answer.

No 84, Page 65.