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.
Anne Nairn v. Barclay of Collairny
Date: 27 January 1708
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By contract of marriage betwixt Sir David Barclay of Collairny and Dame Anne Riddel, he secures her in a jointure out of his lands of Pitblado; and, because the mansion-house on these lands is not sufficiently repaired for her accommodation, therefore he obliges himself and his heirs to build and repair it sufficiently, with the office-houses, for her use during her lifetime. He dies in 1655, and she outlives him for thirty-one years, and dies in 1686, at Newcastle, in Doctor Nairn's house; and, for onerous causes, assigns to Anne Nairn, his daughter, the bygones of her jointure; and particularly that clause of making her jointure-house habitable. Whereupon Anne Nairn raises a process against Barclay, now heir, by progress, to Sir David, to pay her 500 merks yearly during that time, as the house-maill she was forced to pay for the want of it: and, for her damage, at least so much as the Lords shall think reasonable at their modification.
Alleged,—She had no inclination, after her husband's death, to live in that country, but choosed to dwell in burgh-towns; and so no action can be sustained at the assignee's instance, unless it can be proven that she required her husband's heir to repair it: and, on their delay or refusal, she should have pursued a visitation, and cognition of the condition of the house, and what expense the necessary reparations would require; which never having been done in thirty-one years' space, and now twenty years after her death, it is more than prescribed. And it is impossible now, post tanti temporis intervallum, that the damage of not repairing that mansion-house can either be known or liquidated: neither were they in mora till required, which was never sought: and she had several transactions with the heir after her husband's death; but not the least insinuation that she intended to dwell there.
Answered,—The obligement is clear and positive; and acknowledges the house was not then habitable; and there was no necessity of requisition, but they were bound to repair it. What if he had obliged himself and his heirs to build her a house on her jointure lands? They behoved to pay her house-rent so long as she wanted it, aye till performance,—damnum et interesse succeeding loco rei; and the case is the same here, unless they say the house was made habitable and repaired.
The Lords found the libel not relevant after so long a time; there having been no requisition used; and refused to sustain action now.
It was alleged, indeed, That the Lady had raised a process for it in her own lifetime; which showed her plain design to crave it. But the Lords did not regard it, because it was not produced.
