Subjects purchased partly before and partly after the Marriage, how far reputed Conquest.
Wauchope v. L of Niddrie.
Date: 6 February 1683 Case No. No 16.
New rights acquired during the marriage, to lands, which the purchaser had some right to before the marriage, are not to be reputed conquest.
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In an action of declarator pursued by James Wauchope, son and apparent heir of the second marriage, betwixt the Laird of Niddrie and Ker his second spouse, founded upon a clause in the said Niddrie's second contract of marriage, wherein he was obliged to provide the children of that marriage, to 10,000 merks, together with the hail conquest lands during the marriage, and subsumed, That the lands of Lochtouer were conquest during the marriage, and that this Niddrie, as heir to his father, ought to denude himself thereof in favours of the said James;—it being alleged for Niddrie, That he could not be liable to denude himself of the saids lands, because the same could not fall under the clause of conquest, in regard his father had both a right of wadset thereupon, and two comprisings, and an irredeemable disposition from the apparent heir of the said lands;—and it being replied, That after the marriage, he had acquired preferable rights to these lands, and so in tantum the value of these rights were conquest:——The Lords sustained the defence for the Laird of Niddrie, that his father had either right by expired apprisings, or by an irredeemable disposition; and found, That any right acquired during the marriage, although preferable, did accresce to the former rights, and was but a completing of the conquest formerly begun before the marriage.
Fol. Dic. v. 1. p. 198. P. Falconer, No 47. p. 26.
