Effect of consent by a life-rentrix to the infeftments of creditors, in consequence of obtaining other security for her own claims.
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The Countess of Dundee being possessed in an annual-rent out of the Mains of Dudhope, in anno 1650, and having consented to the infeftments of other creditors in the said Mains, in anno 1659, she is provided to ten chalder of victual out of the said Mains, and to certain other lands, and the provision bears expressly in satisfaction of the contract of marriage, and any prior infeftments; whereupon she pursues a poinding of the ground. Compearance is made for Mr. James Birsbin, who produces an infeftment of an annual-rent in anno 1648, and offers to prove possession conform, prior to the Lady's infeftment in anno 1659, whereupon she now pursues, and which infeftment she has accepted in satisfaction of all that can befall to her by her husband's death. The pursuer answered, That she was infeft in an annual-rent out of the Mains in anno 1650, which doth exclude Birsbin, unless he had attained possession before that time; and albeit this infeftment in anno 1659, being in satisfaction, &c. yet that right whereby she accepts the same, is not in favours of Birsbin, but of other rights to which the Lady consented, and not to Birsbin's, to which she never consented, and therefore it must be limited to be only in so far as concerns those rights related therein. Birsbin answered, That be the motive or narrative what it would, my Lady having simply and absolutely accepted this infeftment in satisfaction of her former infeftments, the former infeftments were thereby extinct in the same way as if she had renounced them simply to my Lord, whence there is jus acquisitum to Birsbin, deriving right from my Lord.
The Lords having considered the last provision, found that albeit the narrative related to rights consented to my Lady, yet the dispositive words were absolute, and so did extend to Birsbin. It was also alleged, that this last security, in so far as it bears to be in satisfaction of all others, the acceptance thereof was a donation betwixt man and wife revocable, and my Lady did now recall it. It was answered, My Lady had homologated the same after my Lord's death, by pursuing thereupon; in which it occurred to the Lords, whether my Lady might recal any part of this last provision, and make use of it in so far as it quadrated with the former infeftments, or whether she might recall it after she had made use of it after her husband's death, which not being debated fully, the Lords did not decide therein.
Stair, v. 1. p. 617.*** Gosford reports this case:
The Countess of Dundee being provided by her contract of marriage, extending to 40 chalders of victual, and consented to the alienation of several parts thereof, did in anno 1650 and 1657, get infeftments of several grants in satisfaction thereof out of the Barony of Dudhope. Thereafter, in anno 1659, in respect she had consented to the infeftments given out of the lands of the Barony of Dudhope to several creditors, she got a new infeftment in satisfaction of all her former provisions out of the lands of Innerkeithing, and some rooms out of the Barony of Dudhope; whereupon she did pursue a poinding of the ground; wherein compearance was made for Mr. James Birsbin, who craved preference, as being infeft in anno 1658, and by virtue thereof in possession; which the Lords did sustain, notwithstanding it was replied for the Countess, that her infeftment in anno 1659 was remuneratory, and was qualified, that it was accepted only by her as having consented to the infeftments of several creditors, whereof Birsbin was now one; and notwithstanding thereof, she might make use of her infeftments 1650 and 1651, which were prior to Birsbin's, and were public by her husband's possession; for that qualification being only in the narrative, and the dispositive clause being general as to all provisions whatsoever preceding, which the Countess renounced without any qualification; the Lords would not sustain the reply, albeit by the last infeftment she was a great loser.
