Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FIAR.
Subject_3 Where an heritable subject was destined, in a marriage-contract, to the husband and wife in conjunct fee and liferent, and to the heirs of the marriage; whom failing, to the heirs of the wife: - The fee found to be in the wife, though the provision was not gratuitous, but reciprocal, and though nothing else was given in the name of tocher.

James Sinclair
v.
Robert Anderson and Others

Date: 20 November 1771

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[Fac. Coll., V. 328; Dictionary, 4,241.]

Monboddo. The fee was in the wife. There was a land estate in her in dubio: it is not to be presumed that she meant to convey it to her husband. Circumstances may create a different presumption, as in the case of Watson, 1766. Here both the first and the last terminations are to the friends of the wife.

Pitfour. Both the criteria occur here,—the termination and the original property of the subject. The decisions are not irreconcilable, although the subject proceeds from the wife. The husband is fiar if a sum of money nomine dotis, expressly or by implication, the husband being dominus dotis. Here there is another dos; all the father-in-law's goods and gear are given to the husband as a dos.

Justice-Clerk. I cannot rest my judgment upon that; for, in effect, there were no such goods and gear. There is no more than a clause of style.

On the 20th November 1771, the Lords “found that the fee was in the wife, and removed the sequestration upon an incidental petition.”

Act. J. Scott. Alt. Cosmo Gordon.