Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Janet Shaw v. Margaret Calderwood, relict of George Shaw
Date: 11 February 1669
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In the action of reduction, pursued by Janet Shaw, heir served and retoured to Charles Shaw, who was son and heir served and retoured to umquhile George Shaw, against Margaret Calderwood, relict of the said George Shaw, to exhibit a disposition of the liferent of certain tenements of lands lying in Leith Wynd, made to her by the said George, to be reduced, 1mo, because all dispositions made by persons on death-bed, and after they have contracted a mortal disease, and whereof they never recovered but die, in favours of any, in prejudice of the immediate heir or heirs by progress, are reduceable at the instance of the said heir or heirs; and if the said immediate heir be minor the time of his decease, and has not in his lifetime reduced the said disposition, the benefit of the said action of reduction is likewise competent to the heir of the said deceased heir. But so it is, the disposition made by umquhile George Shaw to this defender was such, viz. in lecto, in so far as he never came out after the subscribing of it, but had contracted the disease of before; and though it bear to be dated on the 1st December 1663, yet it was only subscribed in April 1664: and this disposition, as it was in prejudice of Charles Shaw, heir to the disponer, so it is to the detriment of this pursuer, who is infeft as heir to the said Charles, and consequently as heir by progress to George the granter; and which Charles having died before his majority, she must have the benefit of this reduction. 2do, The decreet of registration of the said disposition obtained by the said defender must also fall, in consequence, with the said disposition.
It was first alleged they could not debate on the reasons, because the production was not fully satisfied; in so far as the charter craved to be produced was not produced.
Replied, There was no necessity for producing the charter, seeing they declared they held the production as satisfied by the disposition and decreet of registration produced; and protested, if the said disposition should be reduced, that the charter proceeding thereon might fall in consequence.
The defender's procurators protested in the contrary. Then alleged, The pursuer has no ground nor interest to quarrel this disposition, because she is not hæres immediate apparent to the granter; there having been two of the disponer's sons living then: and they having thereafter ex post facto deceased, she cannot upon this supervenient right quarrel the said disposition now.
(Vide infra, Number 369, in July 1672, Gray and Scott contra Gray; where the like case is.)
Replied, Though she was not hæres immediate, yet she was mediate heir; and there is par ratio for the one as well as the other to quarrel their predecessor's deeds; especially where the immediate heir dies minor, and the pursuer is now come in his place and has good interest.
Then further alleged, always adhering to their former allegeance, That the said disposition could not be reduced, because the granter went to kirk and market after the same. 2do, Esto It were in lecto, yet it was sufficient as to this defender, in order to her provision of liferent: and the yearly rent disponed being so very inconsiderable, only 200 merks a-year, and she being no otherwise provided by her husband, as he might any time of before, so also even in death-bed, have granted it; and in no sense or law ought it to be quarrelled, she being no otherwise provided.*
Replied for the 1st,—It is offered to be proven, per testes instrumentarios, that it was not subscribed till April 1664, and therefore they are forced to allege kirk and market since that time, and not since the time of its supposed date in December, 1663: and they offer to improve the same in data, and consign, if the defender will abide at it. As to the 2d, though the husband might in his liege poustie
* Craig thinks a man may give his wife a jointure in lecto, because it is no perpetua alientio, page 85; but Durie observes the contrary found by the Lords as the 1st of february, 1622, Robertson.
have burdened his heir, or disponed and provided any part of his estate, in favours of his wife for her liferent use, yet it not being done debito modo et tempore, it ought not to be respected.
The Lords found the mediate heir had interest; and sustained the antedating relevant to be proven. And witnesses having been adduced thereon, and the same advised, the Lords found the same false in the date.
Then the pursuer's procurators alleged, The same being false in the date, was false in all, and therefore craved it be wholly reduced. The Lords declared they would hear both parties' procurators thereon.
Then the pursuer produced two practicques out of Dury, the one on the 29th of March,1626, between Keith and Robertson, and the other at the 10th of February, 1636, between Edmiston and Syme. Likeas the defender's procurators contended, It ought not to be null in totum; and produced a practicque out of the same Dury at the 4th December, Winraham contra the relict of Mr. Robert Winrahame. See them all in Dury.
The Lords having considered them, found the disposition false in the date, and therefore reduce and improve in totum the said disposition; and repone and restore the pursuer in integrum against the same, as if it had never been in rerum natura: reserving always to the said defender any right of terce, or other right she may have to the said lands, prout de jure.
Sinclar and Lermonth were for the pursuers, and Lockhart for the defender.
Vide infra, Number 375, in November 1672, between George Home and one Brown.
Vide infra, November, 1673, Oliphant and Lady Grange, Number 431.
It may be questioned What, if they had offered to prove that even after the true date that ought to have been inserted, he went to kirk and market, and so by the change of the date the pursuers had no prejudice; seeing it would have debarred them from quarrelling it, though it had been of that one date which they contend for? They say the Lords found such a falsehood so punishable, that the writ should make no faith at all, though there were no other ground whereby the same could lawfully be impugned. And this seems just. See Craig de Feudis, page 156.
