Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Mungo Johnston of Netherplace v. James Johnston of Lockerbie and his Creditors
Date: 9 July 1696
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Mungo Johnston of Netherplace, against James Johnston of Lockerbie and his Creditors, craving preference to the rents of the £20 land of Lockerbie, as standing infeft as heir of conquest to his younger brother, Mr Archibald, to whom they were disponed.
Alleged,—He was a consenter to young Lockerbie's contract of marriage, which was taken of purpose to cut off all these pretences.
Answered,—Not only by the contract of marriage, but also by a declaration apart, all bis rights upon the estate are reserved.
Replied,—If this were extended to Mr Archibald's right, then it would destroy the consent given; and, though the marginal note mentions also rights they may succeed to by their brother, yet this margin being offered to be improven as false, Netherplace would not abide by it, and so it is not to be regarded; and the reservation can import no more than their patrimonies and portion-natural, that their consent to their nephew's contract should not cut off these.
The Lords found the reservation extended no farther, and so that their consent did comprehend Mr Archibald's right; and his heir of conquest could not obtrude nor use the same now; and therefore preferred the creditors to the lands in controversy.
Netherplace protested against this interlocutor, and, conform to the claim of right, appealed to the Parliament.
