Scottish Court of Session Decisions

The late John Frew, senior, was proprietor of the wester half of a tenement of houses in Bathgate. The caster half was possessed by John Frew, in Cuffabouts, on apparency as heir to his grandfather, the party last seised in the property. By agreement between these two, Cuffabouts sold his share to John Frew, senior; but no disposition was granted, or titles made up. There was an heritable burden over the property, amounting with interest to £95, which it was said was in 1816 agreed to be paid by Dr Frew, R. N., son of John Frew, senior, in consideration of which his father's right was to be transferred over to him; and on the 25th June of that year, a disposition was executed by Cuffabouts, in which he designed himself as heir apparent to his grandfather, narrating that this sum of £95 had been paid out of Dr Frew's own funds and estate, and conveying his half of the tenement to Dr Frew in fee, and his mother, the pursuer, in liferent, excluding her husband, John Frew senior's, jus mariti. On this disposition infeftment was taken by Dr Frew and the pursuer for their respective interests, on the 3d July, 1816. On the 26th August thereafter, the estates of John Frew, senior, were sequestrated, and after some arrangements with Dr Frew, whereby the latter, for the sum of £96, of the actual payment of which, however, there was no evidence, renounced all right under his disposition from Cuffabouts in favour of the creditors; the whole of the tenement in question was by the trustee exposed to sale by public roup, and purchased by the defender, Reid, in January 1817, Dr Frew signing the minute by which he was preferred to the purchase. On this occasion Dr Frew and the pursuer granted the following obligation:—

“Bathgate, 25th February, 1817. We, John Frew senior, grocer and spirit dealer in Bathgate, Mrs Marion Fleming, alias Frew, his spouse, and John Frew, surgeon, R. N., as severally formerly interested in the dwelling-house which we at present possess, do hereby bind and oblige ourselves to flit and remove from the said dwelling-house and other premises now in our natural possession, and which has been sold by Mr Pearson, trustee for me, John Frew, senior, and my creditors, to Mr Henry Reid, and that at the ensuing term of Whitsunday, 1817, without putting Mr Pearson, or any other person, to any trouble or expense.”

The defender Reid, at the time specified, entered into possession, and continued to possess, without any claim on the part of the pursuer, although he was obliged to pay the heritable debt above mentioned, which it turned out had not, in point of fact, been discharged. In 1828, Reid took a disposition from the trustee, and was infeft thereon; and in 1831, when John Frew senior, Dr Frew, and the trustee, were all dead, the pursuer raised an action, founding on her liferent infeftment, and concluding against Reid for count and reckoning for his intromissions, and to have it found and declared, that she had a valid and real right of liferent in the half contained in the disposition by Cuffabouts. In defence it was pleaded, inter alia, that Cuffabouts being only in possession on apparency, could not grant a disposition which could warrant infeftment, and, consequently, that the pursuer's infeftment was void, and anyright she might have had was personal, and so not only must this action, rested on the assumption of her having a valid infeftment, fail, but the right itself was liable to be derelinquished and excluded, as it had been by her own proceedings, and the possession of Reid under his purchase, from her husband's trustee.

The Lord Ordinary sustained the defences, and assoilzied, adding the subjoined note. ^*

The pursuers reclaimed.