Scottish Court of Session Decisions

Subject_1 FIAR.
Subject_2 DIVISION I.

In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. II.

Where the Right flows from the Wife.

Kinnaird
v.
Pitfoddles

Date: 18 December 1611
Case No. No 18.

A reversion being granted to a husband and wife, and their heirs, the wife having been fiar of the lands wadset, was found also to be fiat of the reversion.

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The Laird of Kinnaird of that Ilk, as heir by progress to umquhile Thomas Kinnaird of Culbin, pursued this Laird of Pitfoddles, as heir and successor to umquhile Gilbert Menzies burgess of Aberdeen, to hear and see the half lands of Pitfoddles redeemed by payment of 40 merks, conform to a reversion of the said lands granted by Gilbert to Thomas Kinnaird of that Ilk, Geillis Murray his spouse, and to their heirs. It was excepted, that no redemption could be granted upon that reversion, which was dated anno 1428, because it was in effect taken away by a posterior charter of the said lands granted in anno 1430, by the saids Thomas Kinnaird and Geillis Murray, for greater sums of money; which charter was ratified thereafter by the said Geillis in her widowhood, and the said ratification confirmed by King James the Second, and ingrossed in his charter under the Great Seal, anno 1440; likeas, there was a precept of sasine direct upon the said posterior charter by the said Thomas and Geillis, with a sasine in secunda cauda. To this was answered, That the second charter could make no derogation to the reversion, because it was not shewn and produced, neither could the ratification of the wife, ingrossing that charter, supply the not production, nor the King's confirmation of the ratification, because it did not confirm the charter, nor make mention of the production thereof, but only of the ratification, and the precept of sasine might as well agree with the first charter extant as with the second. In respect whereof, the Lords repelled the exception. Thereafter, the defender alleged, that the reversion being given to Thomas Kinnaird and Geillis Murray, and their heirs; and giving power to the said Thomas and Geillis to redeem, and obliging Gilbert Menzies to renounce to the said Thomas or Geillis, that Geillis had renounced the reversion which she had power to do. The Lords considering, that when reversions were given to the husband and the wife, and their heirs, that it could make no further power to the wife, but to redeem, to the effect she might bruik during her lifetime, the fee returning to the heirs, that it gave not power to the wife to discharge the reversion, and therefore they repelled the exception. It was thereafter offered to be proven, that Geillis Murray was heritrix of the land, and so the reversion being given æque principaliter to her of her own heritage wadset, it agreed with law and reason, that, after her husband's decease, she might discharge the reversion; which duply was found relevant. But it was thereafter taken away by allegeance, that the pursuer offered to prove, that long before the discharge of the said reversion, granted in anno 1438, the said Geillis Murray made resignation of the lands in the hands of King James the First, upon the Friday before he was slain in anno 1437, in favour of Allan Kinnaird of that Ilk her son, whereupon he obtained infeftment under the Great Seal from King James the Second anno 1440; and so she being denuded by resignation in anno 1437, she could not discharge the reversion thereof. In respect of which answer, the Lords repelled the exception and duply.

Fol. Dic. v. 1. p. 298. Haddington, MS. No 2336.