Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 IMPLIED ASSIGNATION.
Subject_3 Disposition of an area in liferent found to include a tenement afterwards erected upon it.

Robert Downie, and Others,
v.
Marion Alexander

Date: 13 June 1777

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[Faculty Collection, VII. 412; Dict., App. I., Implied Assign., No. 1.]

Kennet. The disposition is not accurately worded, but the meaning is apparent: it was intended that the woman should have the liferent of the upper story; for, as the under storey was reserved, she could not profit from the upper space if not built on.

Covington. Here there is nothing but personal creditors. In a competition between the man's heirs and the woman, the woman would be preferred, and this case is not more favourable.

Kaimes. Although the debt had been contracted for building, it would have made no difference, for still the creditors would have had no preferable right.

Braxfield. The father conveyed an area, and the husband was to provide his wife in a liferent; this means, of a building to be erected on the area. The only question is, Whether any challenge can lie on the head of fraud? There is none, for the provision was reasonable when the husband made it.

President. It is plain that the father meant to secure his daughter in a liferent, as she was accordingly infeft without delay. This is good against creditors.

On the 13th June 1777, “The Lords preferred the woman to the maills and duties for her liferent.”

Act. A. Elphinston. Alt. J. Morthland. Reporter, Ankerville.