An appriser of a burnt tenement, upon which there was a liferent constituted after it was burnt, repaired it after expiry of the legal. Fonnd, that the liferenter might either have what the tenement was worth before the repairs, or possess it, paying for the necessary outlay.
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Hacket being infeft in life-rent in a tenement, which is mentioned in the infeftment to be burnt, having pursued Hugh Watt, who apprised the tenement from her husband, and after expiring of the legal, had built and repaired the burnt tenement, she obtained decreet for mails and duties. Hugh Watt suspends, and raised reduction on this reason, that the Bailies of Leith had committed iniquity, in sustaining this irrelevant reply, that it being alleged that inædificatum solo cedit, so that the building did accresce to her during her life especially seeing the building was mala fide the said Hugh Watt knowing, or being obliged to know her life-rent infeftment, being in a public register; and it is the express sentence of the civil law, that qui scienter adificat in solo alieno donare præsumitur, which ought not to have been sustained; 1mo, Because Watt being a creditor-appriser, was not obliged to know the rights granted by his author, or to search the registers for them; 2do, He being proprietor, by an expired apprising, might have compelled her to suffer him to repair the building, and she would have demanded no more than what she could have made of it before the reparation; or if she will have the possession, she ought to pay the annualrent of the sums necessarily and profitably wared out for the reparation in quantum lucrata est, which is a principle of the law of nations; and the civil law in this case is of no such force with us; for the presumption of donation is easily taken off with the proprietor's own interest; and even by that law, the necessary and profitable expenses of the builder and repairer are due.
The Lords found, That the liferenter might either have what the burnt tenement was worth, or in use to be set at, before the reparation, from Watt, or otherwise the possession, she paying, or allowing out of the duties, the annualrent of rent of what was necessarily and profitably wared upon the reparation, at he option.
Fol. Dic. v. 2. p. 319. Stair, v. 2. p. 54.*** Gosford reports this case:
In a reduction of a decreet, obtained at Elizabeth Halket's instance, against Hugh Watt, for payment of the mails and duties of a tenement lying in Leith; upon this reason, that the Bailles had committed iniquity in repelling at just defence, viz. that the said Hugh had comprised the said tenement, from the pursuer's husband, when it was waste and destroyed by burning, and after expiring of the legal, did build and repair the same, so that the pursuer, albeit she had a prior life-rent, could: not crave the mails and duties, unless she would first refund the whole expenses and charges wared out thereupon, as is clear in law, qui bona fide ædificat in alterius solo potest se tuori contra dominum vindicantem, nisi expensee refundantur, ne locupletetur cum. alterius damno. It was answered for the pursuer, That if was as-clear in law, that quicquid ædificatur in alterius solo, solo cedit, and therefore the life-rentrix being infeft upon her contract of marriage, before the building; the benefit did accresce to her during her lifetime; neither was the pursuer in bona fide to build, seeing the defender's sasine was registrated; and might have been known to him, which puts the pursuer in mala fide; in which case the law refunds no expense, quia qui sciens ædificat in alterius solo, præsumitur donasse.
The Lords did find that the life-renter could have only right to so much the waste land would have yielded; if it had not been repaired, or otherwise; that she paying yearly the annualrent of the whole sums expended upon the building during her lifetime, might possess, the same; and put it in her option to do, either.
