Scottish Court of Session Decisions

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

The Countess of Erroll
v.
The Earl of Erroll

Date: 12 November 1675

Click here to view a pdf copy of this documet : PDF Copy

The Countess of Erroll, being provided by her contract of marriage, to the barony of Esselmount, by Gilbert, Earl of Errol, who was obliged to warrant the rental to be worth of yearly rent seventy chalders of victual, or money-rent, estimating one hundred merks to a chalder of victual;—did pursue this Earl of Erroll, as heir to the deceased Gilbert Earl of Erroll, to make up the said rental, which was alleged to be defective; because it was offered to be proven, that, the time of the marriage, the saids lands were worth, of constant yearly rent in victual and money, no less than seventy chalders, estimating one hundred merks for the chalder.

It was replied, That the kains, customs, and others, being converted to near about three hundred merks, could not be admitted as a part of the rental; because, by the contract of marriage, she being provided in conjunct-fee to the whole barony, had right to the kains and customs, by an attour, the constant rent due by the tenants; and the conversion of the said kains and customs, being only occasioned by the Earl's not living at the place of Esselmount, but at another house far distant; and the warrandice, bearing expressly the lands were worth seventy chalders of victual and one hundred merks, estimated as the price of a chalder,—it could not be the meaning of parties, neither did the words bear to accept of an hundred merks in place of kains and customs.

It was replied, That the contract, giving no right to the Lady but to a liferent of victual and money-rent, without making mention of kains and customs, and the same being converted and made in a constant rent, long before the contract of marriage, the Lady was bound to accept thereof.

The Lords did sustain the defence; and found, That the Earl was not obliged to make up the whole rental, besides the money paid for kains and customs, they being converted before the contract of marriage.

Page 503.