Scottish Court of Session Decisions

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

Alexander Binning
v.
William Brotherstanes

Date: 6 July 1675

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In an action of removing, at the instance of the said Alexander, as being infeft in a tenement of land in Edinburgh, as heir of tailyie to his deceased sister, Margaret Binning; who was spouse to the said William Brotherstanes;—It was alleged, That the defender being infeft in the said tenement, upon his wife's resignation by contract of marriage, and the pursuer having only a tack, redeemable upon payment of a thousand pound, made by the defender to the pursuer; whereupon he did grant a renunciation thereof, the said tenement of land, falling now to the pursuer by virtue of the tailyie, the tack ought to revive; seeing the renunciation thereof, in law ought to be interpreted in favours of the defender and his wife, who paid the sum contained in the redemption; considering, that now the pursuer hath succeeded as heir of the tailyie, and that the tack was only granted to him for security of the said sum, as being due by his sister, the only heir of the first marriage, who was then only fiar of the land: and, by contract of marriage made by her and her father, the same was disponed to the defender, as her portion, in contemplation whereof he did provide her to a jointure, and to the conquest during the marriage.

It was answered, That, by the renunciation, the tack was funditus taken away and extinguished; and the defender, who subscribed the same, and took burden for his wife, can never found any defence thereupon; the renunciation being simple, without any provision or condition, that, in case of succession by the tailyie, it should revive and become effectual.

The Lords having considered the renunciation, that it was not only simple, but likewise did bear an obligement to remove, did repel the defence founded thereupon; but did reserve to the defender any action competent to him, which could only be personal, for repayment of the thousand pounds, paid to the pursuer upon the redemption of the tack.

Page 479.