Subject_1 JUS SUPERVENIENS AUCTORI ACCRESCIT SUCCESSORI. Subject_2 SECT. II.
Where the Author is not liable in Warrandice.
Stuart v. Hutchison
Date: 27 January 1681 Case No. No 15.
Found in conformity with Forbes against Innes, No 12. p. 7759.
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Umquhile David Dunbar being debtor to Hary Stuart in a sum of money, he granted a bond of corroboration, wherein he, with consent of Anna Hutchison, his wife, obliged himself to infeft her in an annualrent, out of a tenement in the Canongate, whereupon he pursues a poinding of the ground. It was alleged for the said Anna Hutchison, that she stands infeft in this tenement in liferent before this pursuer was infeft, or at least had possession. It was answered, That her consent excludes her. It was replied for the defender, That this consent being adhibit ex reverentia maritali, and not ratified judicially with an oath, not to come in the contrary, it is null; 2do, This consent could only exclude or communicate any right the liferenter had in her person when she consented, but cannot reach to supervenient rights, which only accresce upon dispositions with absolute warrandice, but never unto a simple assent.
The Lords found that the reverentia maritalis was not relevant alone to annul the consent, unless threatening at least had been joined, and that the judicial ratification is not necessary, but adhibited ad majorem cautelam; but found if the consenter was not provided to her liferent of this tenement before her consent, that it would not prejudge her of her liferent.
1681. July 7.—Henry Stuart pursues a poinding of the ground of a tenement in the Canongate, upon an infeftment of annualrent granted by umquhile David Dunbar to him. It was alleged for Anna Hutchison, relict of the said David, that she stands infeft in liferent in the tenement before the pursuer's father's infeftment; and therefore though he may apprise the property, he can have no right to the duties during her life. It was replied, That she had subscribed her husband's right of this annualrent as consenter. It was duplied, Her consent could only exclude her from any right then in her person, but her infeftment now founded on is posterior, and not founded upon any anterior obligement to infeft her in this tenement. The pursuer triplied, Jus superveniens auctori accreseit successori. The defender quadruplied, That holds only where the author's right is with absolute warrandice, as hath been frequently decided.
The Lords found the consent could not exclude the defender to defend upon an infeftment posterior to the consent, and prior to the infeftment of annualrent, seeing there was no prior obligement to grant that infeftment to the wife, and that the consent imported not absolute warrandice, therefore could not accresce to the annualrenter. This cause was determined in the same terms before, upon the 27th day of January 1681; but the minutes being wanting, it was reported again, and the same way determined this day.
Fol. Dic. v. 1. p. 514. Stair, v. 2. p. 846. & 888.
