Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Margaret Gray and David Scot her Spouse, v. John Gray and his Creditors
1672.
July.
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About the same time, in a reduction, pursued at the instance of Margaret Gray and David Scot her spouse, against John Gray, father to the said Margaret, and the said John his creditors, the following case happened: Michell Gibsone dispones some tenements of lands to Catharine Gibsone his daughter, and to Jo. Gray her husband, his son-in-law, in liferent, and to the bairns of the marriage procreated betwixt them; which failyieing, to the said Jo. Gray the husband, his heirs and assignees. Catharine dies, leaving only one daughter behind her, called Margaret Gray; who is taken away while she is scarce twelve years old, by David Scot, servant to Walter Pringle, advocate, and married on him without her father's consent; who immediately serves his wife heir, in the foresaid tenements, to her goodsire Michell Gihsone, and intents a reduction of the disposition made to the father, as done in lecto.
Against which it was alleged, that such actions are only competent to the heir of the granter, and that only when they are to his prejudice; but ita est, this pursuer, the time of the granting the disposition quarrelled, was neither heir nor apparent heir to her goodsire the disponer, her mother being on life; neither was the deed to the heir's prejudice, but rather in her favours, it reserving her liferent thereof; neither did ever the heir quarrel it, or show any dissatisfaction at it either by word or writ, in her lifetime.
The Lords found the pursuer had interest to reduce, albeit she was neither heir nor apparent heir the time of the granting the said right, but immediate heir by progress. As also the reason being proven, they did reduce the disposition in so far as by the termination the father was constituted fiar; but sustained it quoad his liferent, because in omni eventu he would have had right to that; for esto there had not been a disposition, but he had served his wife heir to her father in these tenements, he would then have had right to the liferent by the courtesy of Scotland, she being heretrix. See the information beside me. Vide supra, 11th December, 1669, Shaw and Handyside against Calderwood.
