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Scottish Court of Session Decisions >>
- v Chesholm. [1628] Mor 1729 (22 March 1628)
URL: http://www.bailii.org/scot/cases/ScotCS/1628/Mor0401729-011.html Cite as:
[1628] Mor 1729
Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. III.
Private Knowledge of a Preferable Right.
- v. Chesholm
Date: 22 March 1628 Case No. No 11.
A relict was decerned to repeat rents of lands, provided to her in liferent, because she had consented to the alienation of them by her husband to the pursuer.
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In action betwixt —— and Chesholm, for payment of the by-gone mails and duties of a land, to the alienation whereof, made to the pursuer, by the defender's husband, the defender convened, being then his spouse, and who was then infeft in the lands, gave her consent; and now, after her husband's decease, she being convened for repayment, to the pursuer, of the saids mails of certain years, intromitted with and uplifted by her since her husband's decease, and which preceded the intenting of this cause: The Lords sustained this action pursued against the relict personaliter for payment making, notwithstanding of her defence proponed against the personal pursuit, founded upon her liferent right, which she alleged could not be prejudged by her consent adhibited to the said alienation, at command and reverence of her husband; and she remaining now possessor, alleged, that, in this judgment, she could not so summarily be decerned to refund by-gones uplifted by her, conform to her infeftment, standing bona fide, no deed being done by the pursuer before the defender's intromission, which might make her subject to refund these by-gones uplifted bona fide, and consumed, which allegeance was repelled.
