Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMPETITION-TERCE.
Subject_3 Competition between an Adjudication and the right of Terce.

Mrs Jean Hamilton
v.
Mrs Jean Wood

Date: 17 January 1770

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[Faculty Collection, V. p. 27; Dictionary, 15,858.]

Pitfour. A right of terce is of the same nature with a liferent locality. A localist, if she lays out, loses the rents in time past, and so does a tercer. She can only obtain payment of bygones by adjudging upon the implied warrandice.

Coalston. The two claims of terce and locality are precisely similar; consequently, each has a right to levy rents in medio. I think, further, that the creditor-adjudger has not right to more than two-thirds; and that the other third belongs to the widow as terce.

Auchinleck. Till a woman is kenned in her terce, the subject is in the hæreditas of her husband, and is affectable by his creditors.

Kaimes. The wife is preferable; but still, if she does not, the creditors may, as less preferable creditors are received when more preferable do not claim.

On the 17th January, 1770, “The Lords found the widow entitled to the rents in medio, in payment of terce, from her husband's death, but not to rents levied by the adjudger;” varying Lord Monboddo's interlocutor.

Act. Ilay Campbell. Alt. J. M'Claurin.