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.
Nicolas Marjoribanks v. Douglass and Dundass of Breistmiln
Date: 2 February 1712
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Marjoribanks against Douglass. James Murray of Skirling having sold his lands foresaid to Lieutenant-general Douglass; but there being some incumbrances, particularly one by Dundass of Breistmiln, unpurged, there was 27,000 merks of the price retained for clearing thereof, the annualrent whereof was paid to the said James, by way of aliment, for several years. And he being now dead, Nicolas Marjoribanks, his widow, raises a new summons of aliment, on this ground, that she was provided to the liferent of that sum; and craves 1200 merks yearly. Compearance is made for Breistmiln, who alleged, he had a process depending to aftect that remainder of the price, and he would suffer none to touch it till his claim was paid. 2do, Whatever pretence James Murray had, she is not in pari casu; for, being remarried to a second husband, he in jure na-turce, bound to aliment his wife, and not burden her first husband's creditors therewith.
Answered,—That it were against all equity for the General's heirs to bruik the estate, retain a great part of the price, and not pay its interest to the seller's relict provided thereto, who, albeit married, yet has no other fund to support herself and bairns but this annualrent. And though the General, conform to the custom of purchasers, used the precaution of retaining a part of the price to obviate any latent incumbrances that might emerge, and though Breistmiln's be marked amongst others, yet it has not so much as the shadow of a right; and has lingered these many years; and is prescribed non utendo; and never was clothed with infeftment; and can never prevail, much less stop so favourable an aliment.
Replied,—They'll find themselves mightily mistaken about the quality of his right; for he not only has an apprising, but likewise an inhibition long prior to the General's purchase; and his process is so far advanced that there is an act pronounced in it, and her aliment must attend the event of his cause. And it is singular confidence to assert he can never prevail; the rights by which they would exclude him not being yet produced, and which are really paid by the price, or extinguished by the apparent heir's intromissions; and, because of thir defects, are wilfully kept up.
The Lords finding the probability of a claim in Breistmiln's person, they thought it hard to exhaust his fund of payment by aliments. But, in regard it was suggested, that his claim would fall much short of the 27,000 merks retained, and would not come to the half of it, though he prevailed, so that there might be room for a modification of some part of the annualrents to the poor woman; therefore they remitted to my Lord Minto, Ordinary in the cause, to try the extent of Breistmiln's debt, and how far it might subsist; and, if it were within the sum retained, to calculate what superplus might be left behind, out of which the pursuer might get an aliment modified to her.
