Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
The Creditors of Hay of Monkton v. The Lady
Date: 6 February 1695
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Phesdo reported the competition between the creditors of Hay of Monkton and the Lady. They first craved preference for the debts contained in her husband's disposition, with which he was burdened, and must be an onus reale, and preferable to her. Answered,—She was not concerned therein, as they were neither mentioned in the procuratory of resignation, precept of seasine, nor infeftment; and, whatever buyers may do, yet wives and their friends go no farther back than the husband's seasine; and this being since the Act of Parliament 1685, anent inserting all these clauses in tailyies, and being omitted, the general clause relative to the provisions, “within written,” cannot militate against her. 2do. They founded on their gift of recognition, and which they declared they only made use of to secure the 6000 merks paid for it.
The Lords, thinking the points of general importance, named some of their number to endeavour to settle the parties.
