Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Date: 13 January 1686
Lady Kirkland and John Robertson v. Kirkland's Heir
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Euphame Seton, Lady Kirkland, and John Robertson her husband, gave in a bill, showing that her first husband was bound to infeft her in the liferent of 20,000 merks; and that, having that sum secured on her father's lands of St Germains, he had put her name in it; but she had not accepted of it, because the Earl of Winton, superior, had a depending reduction and declarator that the lands held ward, and likewise that the charter bore a pactum de non alienando, and that St Germains had granted many base infeftments, whereby both the legal and conventional recognition were inferred; and therefore craved the Lords would either ordain Kirkland's heir to infeft her in warrandice of that infeftment on St Germains, in case the Earl prevailed, or else that her up-lifting her annualrent and jointure out of St Germains shall no ways import her acceptation of that infeftment out of St Germains to be in satisfaction of the obligement in her contract of marriage.
The Lords having considered this petition, they declared that the petitioner, till the event of the process betwixt St Germains' creditors and the Earl of Winton, may uplift her annualrents out of the lands of St Germains; and that the same shall not import her homologation of that infeftment in these lands, as if she accepted it in satisfaction of her husband's obligement to her in her contract of marriage, so as to prejudge her recourse against Kirkland, in case Winton prevail; and remitted the rest of the affair between her and her son to Kemnay, who heard the cause.
