Margaret Fullerton, Relict of James Brand, v. Grissel Muir, Relict of John Brand
Date: 5 January 1699 Case No. No. 5.
One granting an assignation to mails and duties, who had only a disposition to the lands, without infeftment, the disposition was understood to be thereby so far virtually conveyed, and the assignee preferred to a posterior adjudger.
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In a competition for mails and duties of a tenement in the Canongate, belonging to the deceasad John Brand, compearance was made for Grissel Muir, the said John's relict, who craved to be preferred, because she was provided to the mails and duties of the said tenement by her husband, during her life; and because she was not infeft, she pursued the heir of her husband to infeft and secure her, and obtained an adjudication and infeftment thereupon.
It was alleged for Margaret Fullerton, the relict of James Brand, the son: That she had right to an adjudication of the same tenement against the heir of John, which was year and day prior, and whereupon the Magistrates, as superiors, were charged.
It was answered for the relict of the father: That she ought still to be preferred, because, though Margaret Fullerton's adjudication was prior, yet her right was preferable, in so far as John Brand, her husband, was never infeft in the tenement, but had only a disposition, which was a personal right; and her husband having assigned her to the mails and duties during her life, she had thereby the benefit of her husband's disposition conveyed to her for her life-rent use; and if her right had been in the best form, the same would have assigned her husband's disposition; but, however, the assignation to the mails and duties doth virtually imply a conveyance of the husband's right to these mails and duties, which, being a personal right, required no further solemnity.
The Lords preferred John Brand's relict, and found, That the husband's assignation to the mails and duties did virtually imply an assignation of his own right thereto, and his right being a personal disposition, that the same was thereby conveyed.
Dalrymple, No. 8. p. 11.*** Fountainhall reports this case:
In a competition betwixt Grissel Muir, relict of John Brand, baxter in Canongate, and Margaret Fullerton, relict of James Brand, his son, Grissel had a disposition from her husband, assigning her to the mails and duties of a tenement in the Canongate, belonging to the said John, the father, but contained neither procuratory nor precept of sasine to complete it, or any way to make it a real right; therefore she charges her husband's grandchild to enter heir, and thereon adjudges the right of a disposition her husband had thereto, containing a precept of sasine, but whereon she was never infeft; but she does now infeft herself on that precept by the new act of Parliament. The right of Fullerton, the other relict, was also an adjudication of the same land, founded on debts due by the said John, and his son James, her husband, whereunto she had acquired right, and charged the Magistrates, as superiors, to infeft her; upon which legal diligence, she craved preference, and objected, that Grissel Muir's adjudication was informal, seeing her assignation could not be a title to adjudge, till a previous sentence had been obtained, finding the warrandice incurred; which method was not followed. Answered, The assignation to the mails and duties during her life must necessarily imply a conveyance of all the right that was in his person at the time, as effectually as if it had been validly disponed to her; nam concesso jure ommia conceduntur, sine quibus explicari non potest, and the heir might be summarily charged to complete it without a decree constituting the warrandice; and so it had been decided, 2d July, 1667, Sinclair contra Couper, recorded both by Stair and Dirleton, No. 4. p. 16464. The Lords found, That Muir's adjudication carried all the right that was in her husband's person, and consequently his disposition, which she having completed by infeftment, it gave her preference to the other adjudger, though prior.
