Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. collected by JAMES BURNETT, LORD MONBODDO.

Porteous
v.
Bell

Date: 4 February 1757

Click here to view a pdf copy of this documet : PDF Copy

A woman was heir of an estate, of which the superiority was in her grandfather, and the property in her father, who had infeft himself base, upon a disposition from the grandfather. She made up her titles by service to the grandfather, which carried the superiority; and she also served heir to her father, but she was not infeft upon a precept of clare constat from herself, so that the title to the property was not fully completed. Thereafter she died, and the question was, Whether her husband was entitled to the courtesy?

It was Said,—That, having carried the nobler right, that swallowed up the baser right, like a man who gets a disposition, with procuratory and precept, and first infefts himself base upon the precept, then resigns the lands, and is infeft holding of the superior: that infeftment will swallow up the first one; so that there will not be two rights in his person to the subject. But the Lords did not think the cases parallel, in respect that here the last right was not completed, and therefore could not be said to be vested in the person of the lady, but remained in hæreditate jacente of the father; whereas, in the case put, both rights are completed, and there is nothing wanted to extinguish the base right but a renunciation ad remanentiam in the person's own hands, which the law does not think necessary. The Lords therefore decided the cause in favour of the husband upon another point, namely bona fides, with which he had possessed these lands, as having right to the courtesy, for several years without any challenge; and this notwithstanding there were other claims in his person against the estate, to the extinction of which, it was said, the rents he had uplifted ought to be applied.

Another point in this cause was, Whether a contract of marriage, written upon several sheets of stamped paper, without mentioning the number of pages in the testing clause, as required by the Act of Parliament allowing securities to be written bookways, was not null and void?

It was Alleged,—That the attestation of the notary, in sasines written bookways, required by Act of Parliament 1686, had only been dispensed with on account of the contrary practice long prevailing, which could not be said here; as the common, and almost universal practice, was to mention the number of pages in the last page. Nevertheless the Lords unanimously sustained the deed,—first, because it was a marriage-contract, and therefore more favourable than another deed; secondly, because the pages were numbered; and, lastly, there was a catch-word at the bottom of each page, so that it was impossible any thing could be foisted in. See infra, February 9.