Scottish Court of Session Decisions

Subject_1Sale
Subject_2Sale of Heritage
Subject_3Objection to Title
Subject_4Fee and Liferent — Expenses of Objection to Title.
Facts:

William Frazer Johnston purchased certain heritable subjects in Banff, and took a disposition from the seller in the following terms:—“To and in favour of the said William Frazer Johnston and Mrs Alexandra Augustina De Marchie or Johnston, his spouse, in liferent for her liferent use allenarly, and Mary Elizabeth Kerr Johnston and Alice Kerr Johnston, and the other children to be begotten of the marriage betwixt the saids William Frazer Johnston and Mistress Alexandra Augustina De Marchie or Johnston, share and share alike, in fee.” The disposition bore that the purchase price had been paid by Johnston. The disposition was recorded in the Register of Sasines, the warrant of registration being in these terms—“Register on behalf of William Frazer Johnston and Mistress Alexandra Augustina De Marchie or Johnston, his spouse, for their respective rights and interests in the register of the burgh of Banff.” Johnston sold these subjects to Spence. The disposition in favour of Spence was granted “by” the said William Frazer Johnston, with consent of the said Mistress Alexandra Augustina de Marchie or Johnston, his spouse, for all right of life-rent, conjunct fee, terce, or other right which she had or could claim therein, or to any annual rent or annuity payable furth thereof, and by the said Alexandra Augustina de Marchie or Johnston for herself, her own right and interest, with the special advice and consent of the said William Frazer Johnston, her husband, and by them both with joint consent and assent.” Spence sold the subjects to the Banff Town and County Club, who objected to the title he offered on the ground that the fee of the subjects was not in Johnston or his wife, but in the children named in the first-mentioned disposition, for behoof of themselves and the other children of the marriage. This Special Case was stated accordingly. Held that the fee of the subjects was in William Frazer Johnston, and that the title was good. The Court gave expenses against the Banff Town and County Club in respect that the question was free from any doubt.