Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN BAIRD OF NEWBYTH.

James Logan of -
v.
Elizabeth Galbraith

Date: 26 January 1665

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There is a tenement of land in Leith, called the Catchpaill, whereof umquhile William Logan, skipper there, was heritor; and, by his contract of marriage with Elizabeth Galbraith, he was bound to infeft her in an annualrent of 300 merks forth thereof; whereupon she is infeft, holden of the superior. The said William Logan, her husband, being deceased; and, not being excluded by her contract of marriage, she is likewise kenned to a third of the said tenement, after the decease of the said William, her father's brother's son. James Logan of Consone is heir served to him; and he dispones the said tenement to Richard Logan, his second son; who pursues removing against the said Elizabeth, she being tenant for the time, after the decease of her husband: and Mary Cave, relict of umquhile John Logan, elder brother to the said Robert, did defend thereupon. Decreet is given parte comparante, but nothing proponed for the said Elizabeth; who, being now charged to remove, suspends, upon this reason, That she is kenned to a terce of the said tenement, and so cannot be removed till it be divided; that she has greater interest in the tenement than the charger, because she is provided to the annualrent of 300 merks forth thereof, long before the charger's right; for the byruns whereof, she has adjudged the property, and thereupon stands infeft.

To the first it is answered, 1mo. Competent and omitted, in the foresaid decreet. 2do. The said tenement being within burgh, there can be no terce of the same. Neither can she allege that she bruiks the two parts pro indiviso, the said exception being only in case of lands and tenements, containing several dwellinghouses, which are of their own nature divisible; which this tenement is not: and to the two parts thereof the pursuer has unquestionable right, and so ought to have the possession; the two parts always drawing the third part with them. To the 2d reason it was answered, That, notwithstanding of the adjudication, and infeftment following thereon, she ought to remove; because she having possessed the tenement continually since her husband's decease,—the possession whereof exceeds the annualrent,—she is satisfied of her annualrents by her possession, and so could not adjudge for the byruns of the same.

The Lords found, That the two parts should draw the third, and therefore decerned the tercer to remove; but, if she was willing to take the house of the pursuer for the rent, he should prefer her to any other, she finding caution for the two parts of the house-mail.

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