Any colourable title of intromission found to elide the passive title.
Smith v. Muire
Date: 23 December 1668 Case No. No 179.
A relict who, by her contract of marriage, had been provided to the liferent use of the moveables, was found saved from incurring the passive title.
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Jean Smith having pursued Margaret Muire, as vitious intromissatrix with the goods of George Smith her husband, to pay the sum of L. 110 pounds due by bond, by the said George to this pursuer; his sister obtained decreet thereupon, and apprised the liferent of the said Margaret Muire; who suspended, and raised reduction on this ground, that she could not be liable as vitious intromissatrix, because she possessed her husband's moveables by a title, in so far as by her contract of marriage she was provided to all the goods and gear acquired during the marriage, for her liferent use, and so she could only be liable for making furthcoming the true value after her death. The charger answered, 1mo That there could be no liferent of moveables quæ usu consumuntur, and all liferents of usus fructus must be salva rei substantia; 2do, Though a liferent could consist in moveables, yet the meaning of such a clause, of all moveables acquired during the marriage, must be understood the free moveables, deducting moveable debt; and cannot be understood to exclude lawful creditors.
The Lords found the clause to be understood only of free gear, and not to exclude the pursuer's debt; but found it a sufficient ground to free the suspender from vitious intromission, and to retrench the decreet to the true value.
Fol. Dic. v. 2. p. 43. Stair, v. 1. p. 576.*** Gosford reports this case:
George Smith having granted bond to Jean Smith for L. 100 immediately before his contract of marriage with Margaret Muire, by which he was obliged to provide the said Margaret to the liferent not only of lands but of all moveables and gear which he should purchase during the marriage;—the said Jean did pursue the said Margaret, as vitious intromissatrix, for payment of the said bond; wherein the Lords found, that the said liferent provision did free her from being vitious intromissatrix, she finding caution to make her intromission furthcoming after her decease. But they found likewise, that the said liferent provision did not prejudge any lawful creditor, but gave her right only to the liferent of all moveables deducto ere alieno, and could only be extended to free goods and gear.
