Competent to a Defender to found upon a third party's interest, or other argument, to show there is no ground of claim.
The Lady Ballagan v. The Lord Drumlanrig
Date: 23 June 1671 Case No. No 17.
A wife, in her contract of marriage, accepted of certain lands in satisfaction of her terce. These lands holding ward, were found to fall to the superior on the death of her husband, though it was pleaded for the widow, that her right ought to be sustained to the extent of a terce, which excludes ward, and her renunciation of a terce was a private agreement with her husband, not intended to benefit the superior.
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In an action for mails and duties, pursued at the Lady's instance, as liferentrix of the lands of Birks; compearance was made for the Lord Drumlanrig, who alleged, That the said lands held ward of him as superior, and the pursuers liferent right not being confirmed, the rents did belong to him during the ward, which is yet running. It was replied, That the pursuer's liferent being constitute by a contract of marriage, bearing, that she accepted thereof in satisfaction of all further provision, terce, and third, that acceptation was only in favours of her husband's heirs, but not of the superior; so that, notwithstanding thereof, she might crave the benefit of a terce, as to the said ward lands, which she hath not renounced. 2do, The superior, founding upon the contract of marriage, cannot quarrel the liferent of the lands of Birks, provided to her by that common brocard of law, quod approbo non reprobo. It was answered for the superior, That the acceptation of the liferent lands in full satisfaction, as said is, was a renunciation as to all persons whatsoever, that either had, or might have, a real interest in the fee and property; and that the Lady ought to have advised her security better, and obtained a confirmation from the superior of the ward lands, otherwise she might have her recourse against the heir to warrant the same, but cannot prejudge the superior. Likeas the said clause of acceptation, as it will undoubtedly seclude her from all third of moveables, so it ought from all terce; neither can that brocard of law be obtruded in this case, quod approbo non reprobo, which is only where in one instrument or writ, such as is a fitted account of debit and credit, or where a person grants, that as he hath right to any thing acclaimed, so he is liable himself to the performance of some other deed, or is debtor as well as creditor; whereas here, he question is only, whether or not the liferenter, by her contract of marriage, wherein the superior is no party contracter, hath, in satisfaction of what would fall to her by law, after her husband's decease, accepted of a liferent of certain lands in place thereof.——The Lords did prefer the superior to the mails and duties; and found, that an acceptation of a liferent, in full satisfaction of all terce and third, was a clear renunciation; and that she not getting the confirmation from the superior, could never return to seek a terce, as falling to her by law, to which she could never be kenned by an inquest, no more than crave the benefit of the third of moveables, in prejudice of the bairns' provisions, and portion natural; and therefore, that she had only right for relief against the heir, and that in satisfaction of all further provision, terce, third, or any other thing, could not be interpret that she accepted these lands of Birks as a part of her terce, and only renounced all further terce, which was the opinion of some of the Lords.
Fol. Dic. v. 1. p. 517. Gosford, MS. No 359. p. 174.
*** See Stair's report of this case, No 2. p. 605. voce Approbate and Reprobate.
