Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

The Young Lady Aitoune
v.
The Relict of Alexander Hume

1628. February 14;and 1629, February 4.

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The young Lady Aitoune, being infeft with her husband, by the old Laird of Aitoune, in the lands of —, conform to her contract of marriage, to be holden of the superior;—the said Laird Aitoune afterwards dispones the land to Mr Alexander Hume, to be holden of the Laird of Aitoune, and he is put in possession thereof. In this contract of alienation, the disponers are obliged to obtain the consent of the young lady to the alienation; and, for the security thereof, give a bond of 4000 merks. After the alienation, and before the death of the young Laird of Aitoune, the young lady's conjunct fee is confirmed by the superior; and, after his decease, the young lady pursues for the mails and duties of the land: Compears the relict of Mr Alexander Hume, who had served herself to a tcrce of the said lands, and alleged she ought to be preferred, because her husband was infeft in the lands by the old and young Lairds of Aitoune, before the young lady's infeftment was made perfect by the superior's confirmation. It was answered, That the confirmation being passed before her husband's decease, it must be drawn back to her charter; and no base infeftment, although clad with possession in her husband's time, which she could not impede so long as he lived, could prejudge her of her liferent; in respect, in the contract of alienation, and in the bond, they take the Laird, her husband, obliged to obtain her consent. The Lords repelled the exception.—14th February 1628, and 4th February 1629.

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