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Scottish Court of Session Decisions >>
Douglas v Lady Wamphray. [1668] Mor 6073 (22 January 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor1506073-284.html Cite as:
[1668] Mor 6073
Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IX.
The wife's personal privileges.
Douglas v. Lady Wamphray
Date: 22 January 1668 Case No. No 284.
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The Lady Wamphray being provided in an annualrent out of lands, without respect to a sors or stock, and being infeft, it was found, that she ought to be liable to taxations and public burdens, being oner a patrimonialia, though the said annualrent was payable to her as well infeft as not infeft.
Dirleton, No 143. p. 58.*** Stair reports the same case:
Umquhile Wamphray having infeft his Lady in 2000 merks of liferent yearly, by her contract of marriage, out of certain lands therein mentioned; and being obliged to pay her, as well infeft as not infeft, and to warrant the lands to be worth 2000 merks of free rent, she pursues this Wamphray for payment, who alleged deductions of public burdens. It was answered, that an annualrent was not liable to public burdens; for the act of Parliament, 1647, made thereanent, was rescinded, and not revived; and this provision is payable, not only really, but personally, though there had been no infeftment, and that the obligement to make the land worth 2000 merks of free rent, could be to no other end but to make the annualrent free, especially the contract being in anno 1647, after maintenance was imposed, which was the heaviest burden. It was answered, That an obligement for payment of annualrent, relating to no particular land, could not be burdened with the land, or if it did relate to a stock of money, the ordinary annualrent of the money behoved to be free, but this annualrent relates to no stock, and its first constitution is out of the lands mentioned in the contract; so that albeit there had been no infeftment, it must bear proportionably with the land, and albeit the act of Parliament be rescinded, yet the common ground of law and equity, and the custom thereupon, remains, neither doth the provision (to make the land worth so much of free rent) infer, that therefore the annualrent must be free, which would have been so expressed at the constitution of the annualrent, if it had been so meant.
The Lords found this annualrent liable for the assessment, notwithstanding the act of Parliament was rescinded; and all that was alleged against the same, was repelled. See Public Burden.
