Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES bURNETT, LORD MONBODDO.

Wilson
v.
Young

Date: 17 November 1760

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A Wife was infeft in her husband's estate for a liferent annuity, after which she consented to an heritable bond, granted by her husband; upon this bond the creditor adjudged the lands, and the legal of the adjudication was suffered, by the husband, to expire. The widow now comes and claims her annuity out of the lands, and the question is, Whether she is barred by her consent to the adjudger's debt ?

Lords Kaimes and Coalston were of opinion that her consent implied no more than that the creditor should be paid out of the lands preferably to her, but did not import a renunciation of her annuity or a consent that the creditor should have the property of the lands free of that burthen. But a great majority of the Lords were of opinion that, by her consent, she took the hazard of the debt, and of all its consequences, and that she never could claim her annuity in competition with the creditor; in short, that, in a question with him, she was in the same situation as if the constitution of her annuity had been posterior to the creditor's debt, or had not been at all.