Scottish Court of Session Decisions

Subject_1 PERSONAL and REAL.
Subject_2 SECT. I.

Debita fundi.

Colonel John Erskine of Carnock
v.
Charles Bell Writer to the Signet

Date: 22 July 1724
Case No. No 12.

Arrears of a widow's jointure are a real burden on her husband's estate.

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Mr Scot Sheriff-clerk of Edinburgh, in his contract of marriage with Marion Cuningham, became obliged to employ 10,000 merks on good security to her in liferent, and to the children of the marriage in fee; and for their farther security, and in corroboration of the said obligation, he obliged himself to infeft her for her liferent, and the children in fee, in certain subjects within the town of Mussleburgh; upon which he gave her sasine propriis manibus in October 1689, and in the year 1705 she adjudged for the inlacks of her provision.

The deceast Mr Andrew Ure having adjudged the same subject anno 1692, there arose a competition betwixt Mr Bell, who had acquired right to Ure's adjudication, and the Colonel who had right to the relict's. Mr Bell was preferred upon his adjudication, as prior; but there occurred a question, “Whether or not the Colonel was preferred on the contract of marriage and infeftment, though it was not an infeftment of annualrent, and albeit no adjudication had been deduced thereon; and whether the relict's right of liferent was of such a nature, that in case she had not got full payment of her provision stipulated by the contract, the inlacks could be charged as a real debt upon the common debtor's estate, now when the liferent was determined?”

It was pleaded for Mr Bell, 1mo, That where land are burdened, and made a security for a sum of money, they are disponed expressly in security, which is explained in the clause of infeftment, and made an explicit provision, that they are to stand and remain affected, ay and while the sum for which security is granted shall be satisfied and paid; but in the present case it is not so, for the precept bears a warrant to infeft her for her liferent use; and though the sasine propriis manibus cannot be said to proceed on a precept, yet it bears expressly to be given to her for her liferent, and the symbols are the same which are used in infeftments of property, or rights of liferent of lands, and no money given and delivered as a symbol, which is always done, where the intention is, that there should be a money debt upon the subject, or an annuity of money; her liferent right therefore must resolve into a locality, establishing to her a right to uplift the mails and duties while her liferent did subsist, but could last no longer than till her decease, and consequently there could be no claim thereafter for inlacks. 2do, Whatever might be the import of the contract, yet since the precept of sasine did only grant warrant to infeft her in the subjects for her liferent use, that was sufficient to determine the nature of the right, and no person was obliged to regard any other condition not exprest in the sasine.

On the other hand, it was contended for the Colonel, 1mo, That it appeared from the contract, that Mr Scot's intention was, in all events, to secure his spouse in the annualrent of 10,000 merks, for which he expressly obliged himself, and to infeft her for security; wherefore she being infeft, the annualrent stood secured to her by the sasine, and the subject was impignorate to her for payment thereof; and as there could be no doubt, but if children of the marriage had existed, they would have been secured in the fee by the infeftment, so the annualrents must be secured to the mother in the same manner: And besides, this is one of those infeftments for security, which though distinct from infeftments of annualrent, yet are equally burdens on the fee of him who grants them; Lord Stair, b. 4. t. 35. § 24. 2do, That the sasine contained at full length the obligation to infeft, and the obligement being to grant infeftment for security of annualrents, the sasine must be interpreted in a congruity with it. It is true, that she was only infeft for her liferent-use, yet that was not the liferent-use of the subject, but of the sum secured upon it by infeftment; for she could have touched no more than to the extent of the annualrent, whatever had been the value of that subject. And, lastly, That the meaning was the same, as if she had been infeft per expressum in an annualrent, though in different words; and though all the conditions in the cotract had not been narrated, yet the infeftment bearing to be given conform to the tenor thereof, singular successors were bound, before they could purchase bona fide, to look into the conditions of the contract.

The Lords found, that the inlacks of the jointure were a real burden, and that the adjudication was to be drawn back to the date of the infeftment.

Reporter, Lord Royston. For the Colonel, Cha. Erskine. Act. Alex. Hay. Clerk, Mackenzie. Fol. Dic. v. 4. p. 63. Edgar, p. 99.