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Scottish Court of Session Decisions >>
Dean of Guild James Nicolson v John Duncan, and Jean Wisheart, Relict of Mr William Walker, Minister at Northberwick, his cedent. [1695] 4 Brn 241 (11 January 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040241-0548.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Dean of Guild James Nicolson v. John Duncan, and Jean Wisheart, Relict of Mr William Walker, Minister at Northberwick, his cedent
Date: 11 January 1695
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The case was, Mr William took a bond from Commissary Aikenhead, for 1400 merks, payable to himself, and the said Jean, in liferent. There being many annualrents of this sum owing, Mr William adjudges Commissary Aikenhead's lands for the said principal sum of 1400 merks, and for the haill bygone annualrents thereof, being about 800 merks more; and so the style of the adjudication was, That the lands are adjudged for that whole accumulated sum of 2200 merks to the said Mr William and his wife in conjunct-fee and liferent. Upon which she claimed the liferent of the haill accumulated sum.
Alleged,—Her husband had provided her only to the original sura of 1400 merks, in liferent; and, though the style of the adjudication bore the whole sum to them in liferent, yet that behoved to be understood in sano sensu, et singula singulis; seeing non agebatur, by adjudging, to augment or increase her jointure, but only to secure the money on the debtor's estate from perishing.
Answered,—The very nature of the right bore her plainly to the liferent of the whole; and it was equivalent to an assignation from the husband, and needed no farther declaration of his intention.
The Lords found it could not be the husband's meaning to give her any more liferent, but precisely of the primary sum of 1400 merks, and not of the subsequent annualrents accumulated in the adjudication.
