A bond is granted to a man and his wife, in conjunct fee, and to their children. An apprising is led on it, at the instance of the wife and her second husband. - Found effectual, and to accresce to the children of the first marriage.
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In a reduction, pursued at the instance of Lord Pitsligo, and Robert Miln, his assignee, of a comprising, deduced at the instance of Isabel Hilstone, and Mr William Hog, her husband, for his interest, of the estate of Ludquhairn; upon this reason: That the comprising was null, being led upon a bond granted by Ludquhairn, to Patrick Hodge, and the said Isabel Hilstone, then his spouse, in conjunct fee, and the heirs to be procreate betwixt them; in which bond, the said Isabel Hilstone was only liferentrix, and so could not comprise for the fee of the sum: And 2dly, That albeit she, and her husband, Mr William Hog, could have comprised for the sum; yet she behoved to comprise in terms of the bond, viz. In favours of the heirs of the marriage betwixt her and Patrick Hodge; but could not comprise for herself and her second husband:
It was answered: That she was conjunct fiar by the bond, and so had power to suit execution, and had jus exigendi; and albeit the comprising was not in terms of the bond, yet the bond did regulate the comprising, which did accresce to the heirs of the first marriage, mentioned in the bond: Likeas the defender had right from Mary Hodge, heir of the first marriage; and also my Lord Harcarse was heir of the second marriage, between Isabel Hilstone and Mr William Hog, who compeared and concurred in this process.
The Lords found, that Isabel, being conjunct fiar, had jus exigendi, and there-fore might warrantably lead the comprising; which, being led by her and her second husband, did accresce to the heir of the first marriage, mentioned in the bond: And therefore, sustained the comprising against my Lord Pitsligo, albeit but a singular successor, likewise in the lands.*
President Falconer, p. 56.
* The same case is noticed by Lord Fountainhall, vol. 1. p. 262, under date 18th January 1684, thus:—In a case between Forbes Lord Pitsligo, and Robert and Alexander Milns; The Lords, in præsentia, find in an apprising, led by Mary Hillstains, my Lord Harcarse's mother, on a bond wherein she was only conjunct fiar of the sum, and her daughter, Mary Hog, was by the bond, per expressum, fiar, but led by the liferentrix, for the pricipal sum, as if she had been fiar: That the said apprising was effectual, and accresced to the fiar, as if it had been also led and deduced at her instance, for her interest and right of fee; though her name was not in the comprising, but that the mother's security became her's, seeing she was conjunct fiar, and had power to uplift upon caution.——Nota, The Milns being paid off their debt, the benefit of this cause was for the behoof of Keith of Ludquhairn.
