Scottish Court of Session Decisions

Subject_1 LIFERENTER.
Subject_2 SECT. IV.

What incumbent on the liferenter and fiar as to repairs of the subjects. - Liferent of Furniture. - Bnuos on bank stock.

Young Laird of Caddel
v.
Douglas

Date: 23 January 1635
Case No. No 34.

The Lords extended the act which requires liferenters to find caution to uphold houses, to a person who had infeft his son in his lands, and had taken from him a liferent tack of the house, mains, &c,; and further, they extended it even to the King's donatar, who had taken a gift of the liferent tacksman's escheat, and had assigned that gift to a creditor of the liferent tacksman.

Click here to view a pdf copy of this documet : PDF Copy

The young Laird of Caddell having got, from his father, infeftment of all his lands, by contract sets to his father the mains of Caddell, with the house, and manor place thereof, for all the days of his father's lifetime. Francis Douglas, brother-in-law to the old Laird, takes the gift of his escheat, and makes Stephen Boyd assignee to the said gift, for debts owing by the old Laird to Stephen Boyd. The young Laird of Caddel fiar, intents summons against Francis Douglas, donatar to his father's escheat, and Stephen Boyd, assignee constituted to the said liferent, to hear and see themselves decerned to repair the said manor place of Caddell, and make it in as good estate as it was the time of their intromission therewith, conform to the act of Parliament, Ja. IV. Parl. 3. cap. 25th. It was alleged, 1mo, That this act of Parliament was only conceived against liferenters and conjunct-fiars, who bruiked by infeftment; but the old Laird of Caddell was only but tacksman, who could not be drawn under the said act of Parliament more than any other tacksman, who, by this tack, cannot be holden to uphold his house set to them, especially houses of this kind, the upholding whereof will sometimes exceed the duty of the tack, except in the location they had been specially obliged thereto. To which it was answered, That the exception ought to be repelled, in respect of the quality of the tack set to the defenders, which bears but a small duty, or none at all, and so his case is equivalent as if, in the fee granted by the father to the son, the father's liferent of the house and mains had been reserved. 2do, It was alleged for the donatar and assignee, That acts of Parliament are stricti juris, and this act cannot be extended to donations of liferents, in prejudice of the King, who cannot be compelled to uphold the rebel's house, no more than to pay the rebel's debts; but, however, the rebel may be pursued upon the act, yet the King and his donatar are free, except it had borne the same per expressum. To which it was answered, That the allegeance ought to be repelled, in respect of the act bearing liferenters, without exception; and the reason of the act being for maintenance of the policy, no liferenter whatsoever ought to be exeemed there from, except they had been exeemed expressly.—The Lords repelled both the exceptions, and sustained the summons against all the defenders, for repairing the house to that estate wherein it was the time of their intromission with the same respective; and to find caution, and to uphold the same in time coming; and ordained commission to be given to the Sheriff to try the estate of the house the time of their intromission with the same, and how much it is deteriorated since.

Fol. Dic. v. 1. p. 550. Auchinleck, MS. p. 123. *** Durie reports the same case:

The young L. Caddell being heritor of the place and lands of Caddell, and having acquired his father's liferent thereof from him; and setting back tack again thereof to him during his lifetime, which contained no duty to be paid therefor; and the old Laird being year and day at the horn, and his liferent escheat thereby disponed to Steven Boyd, the young Laird pursues the old Laird and the donatar, upon the act of Parliament, to pay the expenses that would repair the house of Caddell, wherein it was in worse case than it was the time of the acquiring the said liferent, and to keep it in time coming in the like estate, when it shall be repaired. And it being alleged, That this action could not be sustained, while there were a precognition first taken, for trial in what state it was the time of the acquiring of the defender's liferent tack, and what would repair the same; and also it being alleged, That this action could not be sustained against the liferent tacksman, seeing the act of Parliament, which is the ground of the pursuit, extends not to such rights, but only to conjunct fees, or such infeftments of liferent, and cannot be extended to tacks, for it is not proper against them; and any who conduces with an heritor to take a tack of lands or houses, ought not to be burdened with these burdens, the like whereof was never sustained; for a conductor can never be holden to this; but, on the contrary, a conductor more properly may have such action against the setter, especially this pursuer himself being full proprietor, and his property no ways affected with a liferent infeftment; attour he alleged, That such an action was never heard, neither pursued nor sustained against the donatar to a tacksman's liferent; for the King could not be in law holden to this reparation, and consequently not his donatar, no more than the King or his donatar are holden to pay the rebel's debts. These allegeances were all repelled, and it was found there needed no precognition; and also it was found, that a liferent tacksman was as well subject to this reparation as one infeft in liferent, seeing it was a tack granted by a contract, by the which the whole property was granted by the father to the son, and the son again grants a liferent tack to the father, without any payment therefor; and it was not as a tack set inter locatorem et conductorem, which had a competent duty to be paid therefor by the tacksman, in which case the argument had been more considerable; and also it was found, that the donatar to the liferent was subject, as well as the tacksman's self, to pay the charges which should be tried necessary to this reparation, in so far as it was worse now than it was at the time of the acquiring of his liferent escheat, and declarator thereupon; and that the said donatar should keep the same thereafter, as it should have been when it was repaired; which the Lords found, either he should be holden to do, or else to quit his right, of either of which he had his option.

Act. Advocatus, Nicolson, et Gibson. Alt. Stuart et Cunningham. Clerk, Hay. Durie, p. 744.