What incumbent on the liferenter and fiar as to repairs of the subjects. - Liferent of Furniture. - Bnuos on bank stock.
David Scot v. Phoebe Forbes
Date: 5 March 1755 Case No. No 39.
A liferentrix, on entering to possession, finding the house liferented ruinous, it was questioned, whether she or the fiar was obliged to repair it. Found, that neither of them was bound to repair it; but that, upon the liferentrix repairing it, her heirs, at the end of the liferent, would have a claim for the where expense laid out.
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The deceased John Scot, the pursuer's brother, disponed in liferent to Phæbe Forbes his second wife (as an additional provision to those in her contract of marriage) “the mansion-house of Hedderwick, gardens of the same, with that park called Clayland, consisting of about ten acres; which liferent right he binds and obliges him and his heirs to be good, valid, and sufficient to her against all mortals.”
The roof of the mansion house was entirely ruinous; and the question was, whether John Scot the heir, or Phæbe Forbes the liferenter, should be at the expense of repairing it?
The Lords, on the 28th of January 1755, found, “That the roof of the main body of the house of Hedderwick must be sufficiently repaired at the joint expense of Mr Scot of Hedderwick, and Mrs Phæbe Forbes the widow; and that he is obliged to contribute two thirds of the expence of said reparation, and she the one-third thereof; and that the materials of the present roof, and produce thereof, must be applied towards said repair; and that the said repair shall not exceed the sum of L. 60 Sterling, over and above the materials of the present roof; and ordained the said repair to be made by the said Mr Scot, at the sight of a tradesman to be named by the said Mrs Phæbe Forbes, betwixt and the first day of August next to come; and failing thereof, allowed the said Mrs Phæbe Forbes to make the said repairs at the sight of a person to be named by the said Mr Scot, if he thinks fit to name any such; and failing such nomination, the same to be made at the sight of the Sheriff of Forfar, or his substitute; and the said repairs being made, found, that the said Mrs Phæbe Forbes is obliged to find caution in terms of the act of Parliament; and decerned and found moderate expenses due to the said Mrs Phæbe Forbet, and ordained her to give in an account thereof.”
Both parties reclaimed; and it was pleaded for the heir, That it was optional for him to desert the house, and therefore he could not be bound to repair it. A liferent right is only a servitude, and binds the fiar to no more than nuda patientia; so the fiar cannot be bound to repair. The civil law bound the liferenter to repair, and to find surety called the cautio usufructuaria, to leave the subjects in as good condition as he found them. Quoniam igitur omnis fructus rei ad eum pertinet, reficere quoque eum ædes per arbitrum cogi, Celsus scribit, l. 7. § 2. D. De usu fructu. The act 1491, James IV. P. 3. cap. 25. which is ratified by act 1535, James V. P. 4. cap. 15. bound the liferenter “not to waste and destroy the subjects, but to hold them in sicklike kind as they are in at the time he gets and receives the same, he taking his reasonable sustentation or using in needful things without destruction or wasting thereof.”
Pleaded for the liferenter; That as the disponer bound himself and his heirs to give her the liferent of a house, so he must have meant that house was to be made habitable. That indeed after it was made habitable, it was not unreasonable she should bear the minores impensæ for keeping it wind and water tight, and should find caution for that effect; but never could it be expected, that she should lay out the majores impensæ of repairing a ruinous roof, far less of putting on a new one. This is expressly the doctrine of the civil law in the place above-mentioned, where, to what is recited, it is added, Hactenus tamen ut usufructuarius sarta tecta habeat, modica refectio ad eum pertinent. And although it is there also said, si qua tamen vetustate corruissent, neutrum cogi reficere, this was agreeable to the particular doctrine of the civil law; by which it was held, if the liferent of a house was given in legacy, and the house fell, the liferent determined; for the liferent of a house did not include the liferent of the area. But this is not held to be the law of Scotland. The acts 1491 and 1535 relate only to the not abusing or wasting liferented subjects, by altering the form of buildings, plowing pasture grounds, or felling woods.
In this case the Court seemed to agree, that none of the parties were bound to put a new roof upon the house; so the question came to be, In case the liferenter should repair, how far she could have repetition from the heir? Upon this the Court was almost equally divided; some were of opinion, that, if the liferenter should repair the roof, she and her heirs would at the end of the liferent have no further claim from the heir than in quantum esset lucratus. Others said, this was entailing a law-suit.
Upon the first of March 1755, the Lords found, “That neither Mr Scot, nor Mrs Phæbe Forbes, are obliged to repair the roof of the house in question; but that she is entitled to repair the same, and that the said reparation, if made, ought to be at the sight of the Sheriff of Forfar, or his Substitute, at whose sight also the account of expenses of said reparation is to be made up; and found, that, at the issue of the liferent, Mr Scot is liable to repay to the heirs of the liferentrix the whole expenses of the said reparation, conform to the accounts to be made up; but, as to the expenses of process, adhered to the former interlocutor.”
And, upon a reclaiming petition by Mr Scot, praying for an explication of some things in this interlocutor.
“Found, that the expense of repairs must not exceed eighty pounds Sterling; and that the liferentrix must find caution immediately with respect to the gardens and inclosures, as also with regard to the house, after the repairs are made, in the words of the act of Parliament, and modify the account of expenses given in to L. 24: 10s. Sterling, and decern; and also decern for the expenses of extracting the decreet.”
Act. Lockhart.Alt. Wedderburn.Clerk, Kirkpatrick.
Fol. Dic. v. 3. p. 386. Fac. Col. No 148. p. 220.
