Subject_1 ALIMENT. Subject_2 Of the act 1491, cap. 25. anent alimenting of Heirs.
Ogilvie v. Gordon
Date: 14 July 1699 Case No. No 39.
Onerous assignee to the liferent, cannot be affected by the heir's claim of aliment.
Modification of the aliment.
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Ogilvie of Linksfield pursues Jean Gordon, his mother, as liferentrix of his lands for an aliment.—Aileged, All she now possesses is not L. 200 Scots, which is not a competency for herself, and can allow no defalcation to her son.—Answered, The liferent she entered into was much larger; and if she, by mismanagement, or contracting of debts, has diminished the legal fund out of which his aliment is due, sibi imputet; and it must be considered, not as it now stands, but as her husband transmitted it to her, and she ought not to lucrate by her own fact or fault.—The Lords considered these aliments were founded not only super jure naturæ, but on the 14th act of Parliament 1535, and act 25th 1491, anent superiors of ward lands, their alimenting their vassals; which is a real burden, and and follows all singular successors; but it is not so clear quoad other liferenters, who are indeed named in the preamble, but not in the subsumption or statutory part of the act; and whatever might be said against liferenters, who, by voluntary or gratuitous deeds, have diminished their liferents; yet, where they are divested by creditors adjudgers, for onerous causes, the aliment can never be real to affect the liferent they possess, either by paction or legal diligence, providing there be neither fraud nor collusion in the case.—The Lords found her creditors, nor singular successors for onerous causes, no way liable nor affectable quoad any part of the liferent they had; and the aliment was not real against the liferented lands nor them; nor that he son had any regress against her upon her warrandice, from her fact and deed, for diminishing her jointure, being done long before the intenting his action for aliment; and so that her jointure must be considered as it now stands, and not as it was in the beginning; and finding it so mean now, they refused to modify any thing out of it to her son. There was another point here (which the Lords did not consider) that he was major; and the act of Parliament speaks only of minors; and though some heirs of great quality are not obliged to betake themselves to a calling; yet he was not of that rank but he might have followed an employment; and if he was bred to no other, he might have been a soldier; and this has influenced the Lords in some of their former decisions.
Fol. Dic. v. 1. p. 31. Fount. v. 2. p. 60.
*** In the case Hay, younger of Park against his Mother, above-mentioned, No 19.;—out of 1000, merks, which was the mother's yearly annuity, L. 100 Scots was modified to the apparent heir.—And, in the case, Ramsay against Rigg, No 13. supra the Lords modified L.160 Scots out of 600 merks a-year.
