Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.

Sir Archibald Kennedy of Culzean and Lady Girvanmains
v.
Robert Blackwood and the Creditors of Kennedy of Girvanmains

1696. Jan. 23and Feb. 6.

Click here to view a pdf copy of this documet : PDF Copy

Jan. 23.—Mersington offered the famous debate between Sir Archibald Kennedy of Culzean, as assignee by the Lady Girvanmains, against Robert Blackwood, purchaser of these lands at a roup, and the Creditors of that estate; wherein it was contended, that, by the conception of the contract of marriage, the Lady Girvanmains was plainly fiar of the estate, because, failing heirs of the marriage, the heirs of her body, of any subsequent marriage, are the next substitutes; and that Craig, lib. 2. Dieg. 22. clearly stated this case, and determined the fee in favours of the wife; and that the Duchess of Monmouth's contract was advised nearly in parallel terms, by which she was left fiar of the lordship of Buccleuch. —See 12th July 1671, Gairn against Sandilands.

The Lords ordained the cause to be heard in their own presence. But, lest the rent should perish in the tenant’ hands during the dependence, they ordained them, medio tempore, to be paid to the buyer at the roup, in regard he had found sufficient caution, so they would be always liable to any who was found to have best right. For the least effect can be allowed to a roup is to put the buyer in possession; and it is hard, after a sale is perfected, to begin reductions, quarrelling the common debtor's right to the lands; which would introduce a strange confusion amongst the creditors, who, upon the faith of his being generally reputed proprietor, lent him vast sums of money.

Vol. I. Page 703.

February 6.—The Lords advised the cause of the Creditors of Kennedy of Girvanmains against the Lady and Sir A. Kennedy of Cullain, mentioned 23d January 1696; and, after long arguing, found, though the dispositive clause of the tailyie in the beginning of the contract of marriage was dubious, and seemed to make the wife fiar, yet the ambiguity was much cleared and taken off by the subsequent clauses, importing no more in her person but a liferent; and therefore, on the whole matter, found the husband fiar, and sustained the creditors' diligences. This was carried by a plurality of eight against four; though some argued, that the cynosura et regida interpretandi where the fee was lodged, ought to be drawn from the dispositive clause, and not the subsequent ones. But, on a representation that the lands were bought too cheap at the roup, the Lords inclined to recommend to the buyers to add one or two years' purchase to make up an adequate price to be given to the heir, rather than undergo the hazard of a reduction of the roup, though they ought not to be quarrelled on such grounds. Cullain and Girvanmains gave in an appeal from this interlocutor to the Parliament.

Vol. I. Page 708.