Scottish Court of Session Decisions

A petition was presented in the Burgh Court of Stranraer by Mary Wales, praying to have her husband Robert Liddle Wales ordained to remove from certain premises, and in the event of his refusing to remove, for warrant to eject him.

The petitioner averred that by a mutual disposition and settlement dated 21st March 1867, executed between John M'Lauchlan (her former husband) and herself, John M'Lauchlan had disponed to her, in case she should survive him, “in liferent for her liferent alimentary use allenarly, whom failing and at her death to my own heirs, executors, and assignees whomsoever, in fee, all and whole my heritable and moveable estate,” including the said property mentioned in the prayer of the petition; that she and her husband, the defender, had lived together in the said property, but that she had had to leave home owing to his ill-treatment, and declined to return to live with him; that she had legally warned him to remove, but he refused to do so.

The defender stated—“The pursuer acquired absolute right to the properties in question by disposition granted by William M'Lauchlan, land steward, Billown, near Castletown, Isle of Man, in her favour, dated the 16th and recorded in the division of the General Register of Sasines applicable to the county of Wigtown the 20th, both days of August 1873. The defender's right of jus mariti and right of administration are in no way excluded by the terms of said disposition, and no other deed has entered the record in any way affecting or restricting them.” To which the pursuer answered—“Irrelevant. Admitted that the pursuer, asalimentary life-enter

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allenarly of the properties in question, ome five years after her husband's death, purchased from the fiar of said properties his right to and in the fee thereof, subject to her liferent. The deed bearing this expressly on its face is produced. Admitted that there is no exclusion of rights regarding the property of the fee thus purchased. But averred that the pursuer is not now enjoying or possessing the property under her right to the fee, but in virtue of her liferent provision. Quoad ultra denied.”

The pursuer pleaded—“(4) The disposition of 1873 in favour of the pursuer, having only and expressly vested pursuer in the fee of the properties subject to her liferent as therein stated, which, being a separate inalienable right in her person, could not be affected in any way by infeftment in the fee, and the existence of such alimentary liferent being quite consistent with such infeftment in the fee, the pursuer is entitled to decree as craved.”

The defender pleaded—“(1) It is incompetent for this Court to entertain any consistorial question, such as the pursuer's justification for separating herself from her husband, and all such averments should be deleted from the proceedings. (3) The defender, in entering into the contract of marriage with the pursuer, was entitled to rely on the public records, and the same not disclosing any exclusion of his legal right of jus mariti and right of administration in the properties in question, no secret or latent deed containing such exclusion can be competently pleaded against him. (4) Assuming that, by the terms of said mutual disposition and settlement, defender's legal rights were excluded, the pursuer not having taken infeftment thereon, but on a title containing no such exclusion, the defender cannot be affected by the terms of the former deed.”

The Magistrates on 28th May 1888 pronounced the following interlocutor:—“Find in fact—(1) That the pursuer was, prior to her marriage with defender in 1877, widow of the late John M'Lauchlan, vintner, at Nos. 1 and 2 Agnew Crescent, Stranraer, who was proprietor, inter alia, of said subjects; (2) that by a mutual disposition and settlement executed between the said John M'Lauchlan and the pursuer, then Mrs Mary M'Dowall or M'Lauchlan, dated 21st March 1867, the said John M'Lauchlan gave, granted, assigned, and disponed to and in favour of the pursuer, in case she should survivehim, ‘in liferent for her liferent alimentary use allenarly, whom failing, and at her death, to my own heirs, executors, and assignees whomsoever in fee, all and whole my heritable and moveable estate,’ including Nos. 1 and 2 Agnew Crescent; (3) that the pursuer being the alimentary liferenter of the subjects in question by a disposition in her favour granted by William M'Lauchlan, land steward, Billown, near Castletown, Isle of Man, dated 16th and recorded 20th, both days of April 1873, acquired right to the fee of the properties in question; (4) that the pursuer and defender have been living apart since about the month of July 1887; (5) that the pursuer legally warned the defender to flit and remove from said premises Nos. 1 and 2 Agnew Crescent at and against the term of Whitsunday 1888: And find in law that the liferent alimentary allenarly provision in favour of the pursuer, contained in the mutual disposition and settlement executed by her former husband and herself above referred to, implies an exclusion of the jus mariti and right of administration of the defender, and will not fall under the legal assignation implied in the marriage, the effect of such exclusion being to place the pursuer in the same position as if she were an unmarried person; that it is quite competent for pursuer to hold two interests at same time in same property, one the liferent alimentary, the other the fee; that the liferent alimentary provision of pursuer has not been in any way assigned, sold, attached, superseded, or discharged by her acquisition of the fee; that the pursuer's alimentary liferent right has not been consolidated or extinguished by her acquisition of the fee; and that therefore pursuer is entitled to exercise the whole rights of property over the properties in question without being subject to the control or administration of defender: And therefore, and in respect that the term of Whitsunday has now come and is bygone, the Magistrates grant warrant to officers of Court to eject the defender, his family, servants, and effects furth and from the said premises Nos. 1 and 2 Agnew Crescent, Stranraer, in terms of the alternative conclusions contained in the prayer of the petition: Find the defender liable to the pursuer in the expenses of process, &c., and decern.

“ Note.—The Magistrates think it right to point out that while the pursuer's arguments and pleas were supported by the dicta of institutional writers and decided cases, the defender's case was entirely unsupported by such, not a single case or authority having been cited on his behalf.”

The defender presented a note of suspension of this decree to the Court of Session. He averred, inter alia—“The above-recited judgment of the Magistrates is wrongous and unjust. Not only is it unsound in law, but it deals with questions of right, of which the Magistrates are not competetent judges, and it does so in a summary process of ejection—a form of process under which such a question could not be competently tried even in a competent court. In these circumstances the complainer is humbly of opinion that this note should be passed without caution or consignation.”

The complainer pleaded—“(1) The decree complained of is incompetent, and ought to be suspended. (2) The question of right at issue between the complainer and respondent not being a question between landlord and tenant, but between husband and wife, the Court of the royal burgh of Stranraer has no jurisdiction to entertain and decide the said question.”

The Lord Ordinary ( Fraser) on 8th November 1888 pronounced the following interlocutor:—“Repels the reasons of suspension: Finds the threatened charge orderly proceeded, and decerns: Finds the respondent entitled to expenses, &c.

“ Opinion.—The first objection stated by the complainer is that the decree complained of is incompetent in respect the magistrates of Stranraer had no jurisdiction. The subjects from which the complainer is sought to be removed were subjects within the royal burgh of Stranraer. The whole proceeding was gone about in a formal manner, as in removings in a burgh.

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The complainer was duly warned, as is certified by the burgh officer's execution. A petition for removing was then presented, and the period for removal having expired, the magistrates were entitled to grant a warrant of ejection, which they did. The whole proceedings were in accordance with the law as laid down in Robb v. Menzies, January 20, 1859, 21 D. 277.

“It is next said that the Magistrates of Stranraer had no power to pronounce judgmentin such a case as this, because it was not a case between landlord and tenant but between husband and wife. They had certainly the power to see whether the wife had a title to sue, being the proprietor, and this was all they did. It is of no consequence that this is a litigation between a husband and a wife. The question is simply whether the complainer ought not to be removed from premises within their jurisdiction and that depends entirely upon the title which is produced, and which the Magistrates are entitled to read.

It is then said that the respondent, the wife, having acquired the fee of the property, the life-rent which she formerly possessed vanished, being consolidated with the fee. It is undoubted law that if there be such consolidation there is no longer, in the ordinary case, a liferent, the reason being, as the civilians put it, ‘quia re propria nemo uti frui potest.’ But this cannot be taken absolutely and unqualifiedly. The wife in the present case obtained from her husband a disposition ‘in liferent for her liferent alimentary use allenarly’ of his whole heritable and personal estate, and the property from which it is now sought to eject the complainer was a part of the property so disponed. Now, clearly such a conveyance to the wife was one which excluded the jus mariti and right of administration of any husband she might afterwards marry. Alimentary provisions do not fall under the jus mariti at all when declared alimentary by the deed of a third party. Therefore if the case stood upon the deed of the first husband, the complainer, the second husband, had no right to the rents of the property, nor to interfere in its administration. But the wife afterwards acquired the fee, and the contention of the complainer is that the protected liferent, with its exclusion of the jus mariti and right of administration, was at an end, and there being no restriction of the wife's right contained in the disposition to her by the fiar, the complainer thereby became in right of the rents of the property, and could possess it or let it at his pleasure. This is not the reading of these deeds which the Lord Ordinary adopts. He holds that any protection which the wife had when she acquired the fee still subsists; and it has been determined that the alimentary character of a fund will subsist during the marriage, notwithstanding the union of the two rights of fee and liferent. In Balderston v. Fulton, January 23, 1857, 19 D. 293, it appeared that the fee had vested in a woman who already liferented the property under a trust excluding the jus mariti, and the Court refused to order the money to be paid over to the husband. Still further, supposing it to have been the case that the effect of the junction of the fee and liferent in the present case was to open up the rents and the administration of the property to the husband, this would be a donation revocable by the wife, and she has revoked it by her present action.”

The complainer reclaimed, and argued—The decree was incompetent, as the Magistrates had no jurisdiction—(1) in respect that the question was between husband and wife, and the rights involved in the jus mariti, while their jurisdiction only extended to the relations between land-lord and tenant—Ersk. Inst. ii., tit. 6, sec. 48; (2) in respect that the complainer had an ex facie good title, and was therefore neither a vicious or precarious possessor, and the whole question involved was one of heritable right— Hally v. Lang, June 26, 1827, 5 Macph. 951; Scottish Property Investment Company Building Society v. Horne, May 31, 1881, 8 R. 737.

The respondent argued—The Magistrates had jurisdiction. (1) They had to deal with rights of possession in general, and not with right of landlord and tenant only. (2) If the argument of the respondent was sound, the complainer was a precarious possessor, as the Lord Ordinary had found him to be. The question of competency, so far as regards this ground, was waived in the Burgh Court.

At advising—