Scottish Court of Session Decisions

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

Roxburgh
v.
Beattie

Date: 4 January 1672

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In the action before mentioned, betwixt the said parties, Beattie, as having right by progress from Agnes Sandilands, did insist against James Roxburgh, as representing his father, for employment of the annualrent of 3000 merks, conform to her contract of marriage.

It was alleged for the defender, That he had already employed that sum, in so far as he had purchased a tenement of land, and provided her to the liferent thereof, which exceeds the annualrent of 3000 merks.

It was replied, That her infeftment did expressly bear, that it was for implement of another clause of her contract, whereby she was provided to the liferent of the whole conquest during the marriage.

It was Duplied, That the infeftment was given on death-bed; and there was a reduction depending, wherein they now insisted upon these two reasons:—1mo. That the defender was heir, at least was content to serve himself heir, and so had good interest to reduce that infeftment, as depending upon the oblidgement of conquest, in so far as the annualrent of the tenement exceeded the annualrent of 3000 merks, to which she was provided; seeing, if the infeftment had not been given, in law she could only crave, in the first place, that the provision of her liferent of 3000 merks should be satisfied out of the rent of the tenement, and could only crave the rest of the rent as conquest; whereas, if this infeftment, granted on death-bed, be sustained, the liferent of the whole tenement would belong to her as conquest, and the heir should be burdened with the annualrent of 3000 merks. 2do. The defender, albeit he were not heir, yet, as a lawful creditor to his father, he hath good interest to reduce the said infeftment; because no debtor can provide his wife to a conquest in prejudice of a lawful creditor, until first the conquest be ascribed to any provision or liferent made to her by her contract of marriage.

The Lords did sustain the first reason, the pursuer being served heir, for reducing the infeftment as granted in lecto to his prejudice; and did likewise sustain the second reason at his instance, as creditor, to make them ascribe the lands purchased in satisfaction of her liferent provision, in the first place, and for the remainder only to be ascribed to the conquest; because the law provides that just debt be first satisfied.

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