Scottish Court of Session Decisions

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

Mary Menzies
v.
John Corbit

Date: 21 November 1671

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In a double poinding, raised at the instance of the tenants of the lands of Wreaths, against the said Mary Menzies and John Corbit, It was alleged for the said Mary, That she ought to be preferred; because she was infeft upon her contract of marriage, in her liferent of the said lands, long prior to the said John.

It was answered for the said John Corbit, That he ought to be preferred, notwithstanding that his infeftment was posterior; because her infeftment, in implement of her contract of marriage, was affected with a provision, that, until her tocher should be paid, she nor her bairns should have no benefit of that contract of marriage, nor the infeftment following thereupon, until payment of the tocher; and, therefore, she ought to instruct payment thereof before she can have right to the maills and duties of the lands in question.

It was replied for the liferentrix, That she ought to be preferred notwith standing; because she, not being bound to pay her tocher by the contract, but only her brother, who was party-contractor, her husband ought to have done diligence; and sibi imputet that he was not paid.

The Lords did prefer the liferentrix; unless they would allege that the said Mary's husband had done diligence, and that the same could not be effectual because of prior rights; notwithstanding that the provision of the liferent was a conditional obligement, and could not take effect until the condition was purified; so that the husband was not obliged to do diligence, and was in tuto by the said provision. But the contrary was found: which was hard.

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