Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 22 March 1683
Thomas Hunter and Lady Hagburn v. Oughtred Macdougall's Creditors
Click here to view a pdf copy of this documet : PDF Copy
Captain Thomas Hunter and the Lady Hagburn against the Creditors of umquhile Oughtred Macdougall, reported by Harcous. The Lords found that Mr William Wallace's reservation of a power to dispone without the consent of the fiar, etiam in articulo mortis, being in the procuratory of resignation, where-upon instrument of resignation followed; and the faculty being exerced by the said disponer, in favours of Captain Thomas Hunter, for a liferent of 100 merks yearly out of the lands disponed; and in the assignation or disposition by the fiars of the two third parts of the procuratory and resignation foresaid in their favours to Oughtred Macdougall, the said Captain, pursuer, his liferent-right foresaid is also excepted and reserved as a burden on the fee; therefore they find his annuity and right of liferent is a real burden affecting the fee conveyed by Mr William Wallace, the disponer, and does burden these two thirds of it come in the person of Oughtred Macdougall; and this, notwithstanding the faculty exerced by granting the foresaid liferent, was not conveyed in favours of the pursuer by an infeftment, nor was his foresaid liferent-right expressed in Oughtred's seasine. And therefore prefer Captain Hunter to the Creditors of Oughtred Macdougall. And also prefer the relict upon her bond of provision. And find the allegeance, proponed by the creditors against it, is not receivable by way of defence; but reserve action at the Creditors' instance against the relict, as accords.
