Scottish Court of Session Decisions

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

Sir Alexander Bruce of Broomhall
v.
John Muir, and Isobell Boswall, his Spouse

Date: 23 January 1677

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In a multiplepoinding, raised at the instance of the creditors of Munquhannie, against the said Sir Alexander and John Muir; who were competitors as to the preference of the fourth part of the sum of 9000 merks, upon a contract, whereby Craigtoun, for the said sum, did grant an heritable right of an anunualrent effeiring to the said principal, out of the lands of Munquhannie; and whereby he was obliged to infeft David Wemyss in liferent, for all the days of his lifetime, and, after his decease, Elizabeth Wemyss, his daughter, spouse to John Boswall, in liferent; and Mause, Janet, Margaret, and Geills Boswalls, in fee; heritably, and equally amongst them, and their heirs lawfully to be gotten of their bodies; which failyieing, the heirs to be gotten of the said Elizabeth Wemyss; which failyieing, to return to the said David Wemyss, his nearest and lawful heirs whatsoever: Two of the said sisters, viz. Mause and Geills, having died without heirs of their body, after the said infeftment; and the other two sisters having children, and thereafter the said Elizabeth having daughters, whereof one was married to John Muir; did crave to be preferred to Broomhall as to the fourth part of the said principal sum, by a right from Elizabeth Wemyss, the mother, as succeeding thereto by the death of two of the daughters, viz. Mause and Geills, who died without heirs of their own body. There was also compearance made for Sir Alexander Bruce, as having right from Robert Geddie, son to the deceased Margaret Boswall; who was served heir of provision to the deceased Geills and Mause, and infeft in the fourth part of the said sums, which belonged to the two deceased sisters, who, by the contract, were two of the four sisters who were infeft in the fee by the father; and craved to be preferred upon this ground,—That the two deceased sisters being infeft in fee, and in the annualrent foresaid, and their mother being only a liferenter, and his author, Robert Geddie, being retoured heir and infeft, none could grant a renunciation of the said annualrent to the creditors, who had right to the reversion, but a person infeft; whereas the mother, Elizabeth Wemyss, was never infeft; and, by the contract, had only right to a liferent, never being provided to the fee, to which he could only pretend by a substitution and declarator.

It was replied for John Muir, That, albeit the mother was only liferenter, by the contract and infeftment, and the four daughters fiars, yet it was expressly provided, that, failyieing of heirs of their body, the fee should belong to the mother and the heirs of her body; and so, two of the sisters dying without heirs, she had right, by substitution, to their full parts; and Broomhall could crave no right to a fourth part, by right from Robert Geddie, as son to Margaret.

The Lords did find, That the creditors having used an order of redemption, Broomhall, as having right from a person infeft, could only grant a renunciation to purge the lands of the annualrent; but did not decide as to that question,—If two of the sisters, dying without heirs of their body, the mother, or any having right from her, taking a legal course, and being infeft, could have right; but reserved to them, after they should establish a lawful title in their persons, to pursue for that sum Robert Geddie, or those having right from them.

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