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Scottish Court of Session Decisions >>
Wedderburn v M'Pherson. [1665] Mor 15121 (00 July 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor3415121-003.html Cite as:
[1665] Mor 15121
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Dougal M'Pherson having sold the lands of Easter Pourie to Alexander Wedderburn of Kingheny, he is obliged to cause his wife subscribe the disposition, and ratify judicially, she being infeft in an annual-rent of the principal sum of 8,000 merks; whereupon Dougal being charged; suspends upon this reason, That he had dealt with his wife to subscribe and renounce, but she has refused, and so it is factum imprestabile, and the suspender is content to do the equivalent; viz. to suffer the like sum of 8,000 merks owing by the charger to the suspender, to lie in his hands for his security, till either his wife renounce, or she depart this life. To which it was answered, That the suspender being obliged particularly to cause his wife renounce, which is a thing prestable in its own nature, and which his wife may fulfil if she will, and if she will not, sibi imputet, who might have advised with his wife before he came obliged, and therefore now he ought to fulfil his bond in forma specifica; and as to the sum owing by the charger, the suspender stands infeft in the same lands therefore, so that the land is burdened both with that infeftment and the wife's also, which sum he is content to pay for purging of both infeftments, the charger being unwilling to have his lands thus burdened.
The Lords found the letters orderly proceeded, the charger being ready to make forthcoming the money.
