Scottish Court of Session Decisions

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

Isabel Coline, Relict of Gilbert Gray, late Provost of Aberdeen,
v.
John Gray, his Apparent Heir

Date: 30 November 1671

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Gilbert Gray, being obliged to employ 25,000 merks upon land or annualrent, to himself and her in liferent, and the children of the marriage in fee; the said Isabel did pursue her husband's heirs to employ 5000 merks of the foresaid principal sum, in respect that she was only infeft in lands which were wadset to him, redeemable upon payment of 20,000 merks.

It was alleged for the defender, That the lands wherein she was infeft were worth of yearly rent as much as would amount to the annualrent of 25,000 merks, which were given her in satisfaction of her contract of marriage; and if there were any thing deficient, they would make up the same.

It was replied, That the wadset lands, bearing a reversion of 20,000 merks, could only be an implement of the contract pro tanto; and, albeit the rents were more worth than the annualrent, yet, it being a wadset, and she liable to the hazard of evil tenants, and other burdens, could be no further satisfied thereby but as to the implement of 20,000 merks.

The Lords, having considered the relict's infeftment, that it did not flow from the granter of the wadset, but from her husband, as having right, not only to the lands, but likewise as having right to an apprising, and to a tack of the teinds of the lands, which fell not under the wadset; did find, That the rent of the lands, being equivalent to the annualrent of 25,000 merks, to which she was provided, she could crave no further; but, if the right had flowed from her husband as a wadsetter, only for 20,000 merks, the case had been more difficult: But yet it seems, in reason, that she, being in possession of as much as she was provided to, she could not crave any more; and that the proper wadset being lucrative, and exceeding the annualrent of the money lent, she ought not to have the benefit thereof, but only that which was intended by her contract of marriage should be secured to her free of all burdens; which was done by the right of the wadset so long as the same should remain unredeemed; albeit, in the case of redemption, the heir would be decerned to employ 25,000 merks.

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