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Scottish Court of Session Decisions >>
M'Dougal v Guthrie and his Spouse. [1678] Mor 5315 (15 January 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor1305315-057.html Cite as:
[1678] Mor 5315
Found in conformity with Richardson against Palmer, No 52. p. 5310. that the husband of an heir apparent may acquire apprisings without being liable to redemption on the terms of an heir apparent.
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Andrew M'Dougal pursues ——— Urquhart as heir to ——— Urquhart of Dunleughs his debtor, and Sir Henry Guthrie for his interest; and insists against her as intromitter by herself and her husband with the rents of the lands wherein her father died infeft.—The defender alleged absolvitor, because any intromission had by her husband, was singulari titulo, viz. an apprising against her father, whereunto her husband had right. —The pursuer replied, That by the act of Parliament 1661, apprisings coming in the person of the apparent heir, or any other to their behoof, are redeemable by payment of the sum they truly gave out, and this apprising being acquired by the husband of the apparent heir, it was alike as if it were acquired by herself, or must be presumed to her behoof, otherwise the act of Parliament would have been ineffectual as to all heirs-female. —It was duplied, That statutes being stricti juris, cannot be extended by the Lords; and this point was already determined betwixt Lamont and the Laird of Hall-yards, No 52. p. 5310; and that unless the apprising was acquired by the means of the heir-female, or to her behoof, or that she were to be fiar therein, the acquisition by the husband was not redeemable upon the sums he paid, though he might have gotten ease upon the account of his wife.
Which the Lords did also sustain in this case.
Fol. Dic. v. 1. p. 360. Stair, v. 2. p. 672.*** Fountainhall reports the same case:
An action was brought by Andrew M'Dougal against Sir Henry Guthrie's son for payment of a debt owing by his wife's father, and convenes him as intromitter.—Alleged he did it by comprisings he had acquired.—Answered, The apparent heir, by the 62d act in 1661, acquiring rights, they are redeemable from him. —Replied, It is not here the apparent heir that purchases, but her husband.—Duplied, In 1674, Richardson contra Palmer and Halyards, No 54 p. 5312. the Lords found the husband in the same case.—Triplied, That pratique was just contrary; for it is a correctory law, and so to be strictly taken.——The Lords found the husband not liable, unless it were proven he acquired the apprisings with the wife the apparent heir's means, or that the fee of the right taken to the apprising terminates on her and her heirs; but that an ease and compensation was got on the wife's account, seems not fully relevant.
