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 Earl of Murray v. Catherine Drummond, Lady Craigton
Date: 4 January 1711
Click here to view a pdf copy of this documet : PDF Copy
Catherine Drummond, Lady Craigton, being, on her contract of marriage, infeft in certain lands in liferent, together with the house, yards, and parks; but with this quality, that, in case of a second marriage, she should remove from the house, yards, and park; the Earl of Murray, being a creditor to her husband, and being infeft on an adjudication, pursues the Lady to remove from the house, yards, &c.; in regard she was now married to a second husband, and so had lost and forfeited her liferent of these.
Alleged,—The house I now possess is not the house that was standing at the time of my contract; but my husband, during the marriage, demolished that house, and built a new one; so that there is not one stone standing upon another of that house wherein I was infeft, and which is mentioned in my contract; but a new one erected on my liferent lands, and so accresces to me, et cedit solo; from which I cannot be debarred, unless, by a new consent subsequent to the building, I had declared that, by a second marriage, I should lose the liferent of that new house; which I have not done.
Answered,—Though it be built since her contract, yet it is almost built on the same foundation, and near to the ground on which the old house stood; and so, fictione juris, is as much the same as a ship though repaired all with new planks,—Arg. I. 76 D. de Judic.; and as surrogatum sapit naturam ejus in cujus locum subrogatur, so the identity of the second house with the first must oblige you to remove.
The Lords found this mansion-house being built on the foundation where the former stood, the lady must remove.
But, as to the parks, it was Contended,—That, at the time of her marriage, the same was of a very small circuit, extent, and bounds; but that, since, he had inclosed a very considerable piece of ground; and, therefore, she could remove from no more than what was the park at the time of her contract.
The Lords thought this reasonable, and ordained it to be tried: for what if he had, during the marriage, inclosed a great part of her liferent lands, that clause in her contract could never have afforded action to dispossess her thereof. See 2d February 1672, Guthrie against Macdougal.
