Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VIII.
Mala Fides induced by Process, whether it will take place from Citation, Litis-contestation, or Decree.
Fumartoun v. Lutefoot
Date: 15 July 1675 Case No. No 37.
In a reduction and improbation of a disposition granted by a woman, and assigned by her to her husband in their contract of marriage, the hasband was not found liable for the by-gone profits from the citation, but from the time only that clear evidence was brought of the nullity and falsehood of the dispositon.
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Thomas Dunmuir granted a disposition of the fee of half a tenement in the Canongate, to Janet Bartan his wife. There is now improbation thereof intented, at the instance of Janet Dunmuir, heiress to Thomas Dunmuir her granduncle, and John Fulmartoun her assignee, against Sarah Elder, daughter to the said Janet Bartan, and John Lutefoot her husband; which disposition was registered in the books of the Bailie-court, of the Canongate. And the pursuer insisting for certification, the defender produced the extract, and therewith the register itself. The pursuer alleged, That any writ registered in an inferior court, was upon the peril of him that registered the same; so that if it miscarry, being in the custody of those inferior clerks, the extract could not satisfy the production in an improbation. The defender answered, That where the right registered is ancient, and adminiculated with infeftments and possession, the samen is sufficient to elide the presumptive falsehood, upon the not production, as was lately found in the case of Mr David Thores contra the Laird of Tolquhoun.* The pursuer replied, That the adminicles here produced were no ways sufficient, because it is evident, by the register itself, that the clerk hath written upon the margin of this disposition, that the principal was given up to the party, which could be no other than Bartan the wife, to whom it was granted; for the disposition bears, ‘That the husband, granter thereof, was then inclosed for the plague, and that he did not subscribe, nor touch the pen, for fear of infection, but only gave warrand to two notaries;’ so that it could not be delivered to her; and therefore the disposition being in the time of the plague, and the husband having shortly died, the wife having liferented the half of the tenement, continued in possession. And the husband's heir seeing a disposition in the register, and infeftment thereupon, did not suspect the falsehood; to whom the pursuer succeeded, being an infant, and indigent; so that till of late, upon inspection of the register, it was not questioned; but now it being evident, that the disposition was taken up by the wife, the infeftments and possession thereupon can no ways adminiculate the verity thereof, as in the case of Mr David Thores, wherein there was a constant tract of process, and the granter of the bond in question having been charged, taken with caption, and suspended, never pretended falsehood. The defender duplied, That the adminiculation was stronger in this case, because there were thirty years possession, and no possession was attained on the apprising upon that bond in Thores' case for many years, 2do, If need be, the defender offers to prove the tenor of the disposition in question; and insists in the summons of tenor raised for that effect; and for adminicles, produces the extract, the register, and the infeftments; and offers to prove the tenor by witnesses who saw the principal disposition. Likeas the register is fortified by this, that Mr James Logan, who was clerk of the Canongate, was one of the notaries, and did also register it; and now he and the other notary, and all the witnesses, being dead, if after so long a time, and probably upon design, after the witnesses death, infeftments clad with so long possession, and come to singular successors, shall be overturned for the fault of the clerk, in not producing of the principal, who, to palliate the same, hath written upon the margin that it was delivered to the party, it will be a dangerous preparative. It was triplied for the pursuer, That the verity of this disposition is no way adminiculated by what is produced; but the forgery is the more suspect, that one person was notary thereto, and registrater thereof; and it cannot he imagined that his marginal note was to palliate his negligence, in respect his giving up thereof was a breach of his trust, much worse than negligence; neither can the tenor be sustained
* Stair, v. 2. p. 253. & 297. voce Improbation.
to supply the production, because in all tenors there must not only be adminicles in writ, but there must be a probable casus amissionis; and in any doubtful case, rei gestæ veritas must be proven; but here there is no warrantable casus amissionis; but the parties taking up the principal, without instructing how he lost it; neither is there any pretence that there are witnesses who saw the husband give warrant to the notaries to subscribe; and therefore the naked sight of a writ, in a case so suspicious, is no way sufficient to astruct the verity, or to instruct the tenor thereof: And if this method were sustained, it lays a sure way for all forgery, that the forger may register the writ, and then take it up; and after showing of it to some witnesses, destroy it, and prove the tenor thereof by those witnesses, who could not exactly know the truth of the subscription, much less when it is by notaries.
The Lords granted certification, and improved this disposition, and refused to sustain the tenor thereof, as it is libelled. See Tenor—Proof.
And the defender having then alleged, That he being a singular successor, and having bruiked bona fide by a disposition from his wife, in their contract of marriage, could not be liable for the bygone profits, and therefore the improbation could not be simple improving the writ ab initio, nor yet from the citation, till by production of the register his bona fides were interrupted.
Which the Lords sustained, and found also, that the reparations made by the defenders, in so far as they were profitable and increased the mail, should be restored.
