Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Lady Halgreen v. Burnet of Montboddo and his Tutor
Date: 30 July 1702
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Burnet of Montboddo and his Tutor against the Lady Halgreen liait of Halgreen having sold some lands to Burnet of Montboddo, his Lady, being infeft therein, pursues for maills and duties after his decease; wherein Montboddo compeared, and offered to prove she had judicially renounced her liferent in these lands: but she having replied, That it was only consigned in terms not fulfilled to her, and so never a delivered evident; and sundry witnesses being examined thereon, the Lords found the renunciation was never delivered, and so preferred the lady. But the tenants suspending again upon multiple-poinding, Montboddo craved to be preferred on an old wadset-right he had acquired in, and whereto the lady had consented. She alleged, 1mo. No regard to this interest, because it was competent and omitted in the first decreet, where, in a competition on this same subject, and betwixt the same parties, the lady was preferred.
Answered,—1mo. That preference was only for anything then seen, without any declarator or conclusion against Montboddo, in which case competent and omitted is clearly foreign to this matter; 2do. Montboddo was then minor.
The Lords repelled the lady's allegeance, and found it yet receivable; 2do. The lady contended, that, Montboddo having first acquired the infeftment of annualrent, and then the right of property, the just nobilius of the property did wholly absorb and extinguish the annualrent, which was but a servitude, and they were incompatible.
Answered,—It was an undoubted principle, That purchasers might make use of all the rights in their person against third parties competing with him, as separate distinct rights, even without a reservation; but much more where it is expressly provided, as here, that the irredeemable disposition shall not prejudge the heritable right.
The Lords also repelled this objection, and found no confusion in this case, but that he might found on any of the rights in his person.
Then, 3tio. Alleged for the lady,—She must have the benefit actionum cedendarum: You standing infeft in more lands than those I liferent, if you be preferred, you must assign me, for my relief to the other lands, after the payment of your own annualrent.
Answered,—Whatever favour might be in ordaining one to assign in the ordinary cases which emerge, Montboddo can never be decerned to do so in his circumstantiate case, because that were to assign against himself, he having purchased in the irredeemable right; and so it would evidently tend to his own damage and detriment, and to make him put weapons in his adversary's hands.
Replied,—Though I consented to that infeftment, yet it was intuitu and in contemplation that I saw sufficient lands behind for my security, beside what would pay the annualrenter; and, by your acquiring the property, you have lessened my fund.
The Lords thought this point deserved to be heard in their own presence.
