Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Jean Johnstoun, Relict of Irving of Brucklaw,
v.
Alexander Keith of Midbelty

Date: 5 July 1671

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In the action before mentioned, at Keith's instance, against the tenants of Overaltrie, liferented by the said Jean;—it being alleged, That Keith, being a wadsetter of the lands of Brucklaw, and for security of the monies lent upon the wadset, conform to the power given him in the contract, having comprised the liferent lands long before the lady's infeftment, and she being paid of the back-tack duties for many years before the liferent right, he had good interest, upon his comprising, to pursue for the maills and duties of the liferent lands for the whole years of the back-tack duty that he wanted.

It was alleged, That the comprising could be no title, albeit prior to the liferent; because the Lords, having already found, that the comprising was only for farther security, and on warrandice in case of eviction of the principal lands, or that the rental was deficient, that could be no ground to quarrel the liferent given by the granter of the wadset to his wife; in respect that the right of the wadset of Brucklaw was never questioned nor taken away: and the wadsetter, suffering his author to possess, could not prejudge the liferenter, it being the wadsetter's fault: especially seeing, by a mutual condescendence, he had agreed that the liferenter should possess that part of the lands whereof he had been in possession.

The Lords did sustain the defence, and found, That, albeit the wadset and comprising were prior to the liferent right, they could not prejudge the same, there being no eviction; and that, having subscribed such a condescendency, he could never quarrel her right.

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