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Scottish Court of Session Decisions >>
Foulis v Allan. [1626] Mor 8270 (23 March 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor2008270-033.html Cite as:
[1626] Mor 8270
What incumbent on the liferenter and fiar as to repairs of the subjects. - Liferent of Furniture. - Bnuos on bank stock.
Foulis v. Allan
Date: 23 March 1626 Case No. No 33.
The act 25th, Parl. 1491, appointing cautionem usufructuariam is not rescinded by the act 226th, Parl. 1594. This last regards ruinous houses, which a liferentrix cannot be required to repair.
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George Foulis, heritor of a tenement of land in Edinburgh, raises letters, and charges upon the act of Parliament Ja. IV. anno 1491, and another act Ja. V. anno 1535, against Isobel Alan, liferenter of that same tenement, to entertain that tenement, in the case wherein she received the same, and to find caution to that effect; which charges being suspended by her, upon a reason founded by her, upon a posterior act of Parliament, Ja. VI. anno 1594, ch. 226, By the which act, it is provided, “That such caution ought not to be found, while first a precognition had preceded, and been taken concerning the estate of the tenement;” so that nothing being done, which is prescribed by that act of Parliament, wherein the order which should be observed in such cases, in all time thereafter, is expressly set down, and the former acts are explained, whereby caution cannot be sought, nor found, while that be performed; likeas, by the said act, it is provided, “That the heritor may enter to the said lands, in case of not finding of caution, and possess the same, he finding caution to the liferenter to pay to her the mails yearly, during her lifetime, as the land presently gives;” and she is content, conform to the act, that he enter, finding caution to her to that effect foresaid.—The Lords found the charges orderly proceeded against the liferenter, for causing of her to find caution, according to the foresaid first act of Parliament Ja. IV.; which act they found not to be prejudged by the said last act 1594 in any sort, but to be ratified thereby; and that any order therein set down, which appears to differ from the preceding acts, is appointed only for decayed and ruinous lands which are liferented, that the heritor may repair and big the same; which reparation cannot be made by a liferenter, nor she cannot be urged thereto, she only bruiking by a temporal right, quo casu the heritor entering to the same for that end, caution should be found by him to pay the mails to the liferenter, as that decayed land presently paid; and that act concerned not other land which was not ruinous, which the liferenter was holden by the preceding first act of Parliament to preserve in as good estate as it was when she entered thereto, of the nature whereof this tenement controverted was; for that last act was also in favours of the heritor, who thereby hath the privilege of reparation of burnt, ruinous, and decayed lands, given to him, in respect of policy had and to be kept within burgh.
Act. Foulis.Alt. Burnet, minor.Clerk, Gibson.
Fol. Dic. v. 1. p 550. Durie, p. 196.
