Scottish Court of Session Decisions

Subject_1 LIFERENTER.
Subject_2 SECT. IV.

What incumbent on the liferenter and fiar as to repairs of the subjects. - Liferent of Furniture. - Bnuos on bank stock.

Major Thomas Cochran, and Others, Trustees appointed by the deceased Charles Cochran, Esq; of Culross,
v.
Major-General James Cochran

Date: 7 August 1755
Case No. No 40.

A person getting the liferent of a house, and of the furniture thereof, must use the furniture in that house only.

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Charles Cochran of Culross, by a disposition, to take effect after his death, vested his estate, heritable and moveable, in certain trustees for uses; and, by the same deed, he gave the liferent of the house of Culross, and household furniture, gardens, and inclosures, to his brother Major-General James Cochran; who, after the death of Charles, attained the possession of these subjects.

The Trustees brought an action against the General, for having it found, 1st, That he could only use the household furniture in the house of Culross. 2dly, That some very fine table-linen, of Dutch damask, cut and shaped in 1663, but never sewed, nor used, did not fall under the liferent grant of household furniture; and, therefore, that the General ought instantly to restore them to the Trustees.

It was pleaded for the defender, against the first conclusion of the libel; That, as he had got right to the liferent of the furniture in the house of Culross, without any restriction as to the place where he was to use the furniture, he might use it where he pleased, and could be no further restrained than the nature of all liferents restrains the liferenter, viz. to the use salva rei substantia; and although the furniture is in the deed described to be the furniture in the house of Culross, yet that was only demonstrative of what furniture was given, but not taxative, so as to confine the defender to use the furniture only in the house of Culross. Liferent rights of furniture are very common, and are often granted in favour of wives in their contracts of marriage, or by other deeds; and yet it was never pretended that the liferenters could only use that furniture in the house by which it happened to be described in the deed, and that they could not transport the bed and table-linen, or other furniture, to any house in town or country, where they might happen to reside; were liferent rights to be constructed as the pursuers would have them, they would often be of very little use to the liferenters.

Against the second conclusion of the libel, it was pleaded; 1st, That table-linen are undoubtedly household furniture, and therefore it was not necessary to inquire what was the proprietor's intention; such inquiry is only necessary, when it is doubtful whether the thing falls under the description of household furniture or not. L. 32. § 2. D. De auro, argento, & c. legat. Argento, potorio, vel escario legato, in his quæ dubium est cujus generis sint, consuetudinem patris familias spectandam; non etiam in his quæ ceritum est ejus generis non esse. 2dly, That the intention of the proprietor to make the damask household furniture sufficiently appeared from his cutting it into table-napkins and table-cloths; and therefore they fell under the liferent-grant of the furniture.

It was answered for the pursuers, in support of the first conclusion of the libel; That where the liferent of a house, and of the furniture in that house, is granted to one, it is implied in the grant, that the liferenter is only to use the furniture when he resides in that house; and were it otherwise, the right of the fiar would be of very little value; for furniture is usually adapted to the place where it is put up, but if moved from place to place, must be very soon destroyed.

In support of the second conclusion of the libel, it was answered; That it depends much upon the will of the proprietor, whether a thing is to be reckoned household furniture or not, as it is observed by Voet. ad tit. D. De supellect. legat. No 3. And as the table linen were never used, nor so much as sewed, so as to be fit for using, they cannot be considered as household furniture, as appears from the definition thereof, L. 7. § 1. D. De supellect. legat. Instrumentum quoddam patriis familiæ rerum ad quotiainianum usum paratum.

The Lords found, that the defender could not carry away any of the household furniture out of the house of Culross, or use it any where else but in that house; and found, as to the linen cut, but not sewed, and which were kept for so many years backwards in the family for a curiosity, without being made use of as furniture, that the defender had no right to use them any other way than as they had been formerly used.

Reporter, Shewalton. Act. And. Pringle et Sir John Stewart. Alt. Ro. Bruce. Clerk, Gibson. Fol. Dic. v. 3. p. 386. Fac. Col. No 162. p. 242.