Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HERITABLE AND MOVEABLE.
Subject_3 Window-frames, doors, and the like, found within a house, when a-building, but not yet fixed to their proper places, belong to the Heir.

Mrs Margaret Johnston
v.
William Dobie and Others

Date: 25 February 1783

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[Fac. Coll. IX. 156; Dict. 5448.]

Gardenston. We know no moveables that are heritable except heirship moveables. If you give a subject to the heir by implication, you must do the same as to the executors. Thus, a bargain for selling wood would go to the executors, though not a stick sold. Wise men Jay in all materials before they begin to build. Do all those materials belong to the heir? In support of my opinion, there are strong texts in the civil law, and a passage of Erskine in point.

Braxfield. I am, in general, of the opinion of the interlocutor. In many cases we get much light from the civil law: but we cannot in a case like this; for the distinction of heritable and moveable was not known in that law. The texts quoted relate to questions betwixt seller and purchaser. The solid principle in the law of Scotland is, that things moveable in their nature may be heritable destinatione, such as bonds to heirs and bonds with substitutions. On the other hand, wadset-money, after requisition, becomes moveable, because such is the will of the party. When materials are adapted to a particular heritable use, if they do not go to the heir they may become good for nothing. Here intention is, in great measure, carried into execution.

Eskgrove. Intention alone is nothing; but, wherever there are overt acts, I capnot depart from the sense of the parties.

Justice-Clerk. Materials may be collected, and yet the work never executed: but here there is a distinction,—the house is built, and the materials have been adapted to the building. If they do not go to the heir, they will be lost to every one else, for they are fitted to the house, opere manufacto; and so the subject of the succession would he diminished. There is no danger of leaving things ambiguous. If the rule of law is, that every thing moveable goes to the executor, every partition taken down will go to the executor. If the proprietor dies before such a partition is replaced, that indeed would make the law ambiguous.

On the 25th February 1783, “The Lords found that the materials destined for the house fall and belong to the heirs-at-law;” varying the interlocutor of Lord Alva.

Act. J. Morthland. Alt. R. Dundas.