Scottish Court of Session Decisions

Subject_1 BONA ET MALA FIDES.
Subject_2 SECT. II.

Private Knowledge of a Prior Right.

Home of Aiton
v.
Home

Date: 4 February 1629
Case No. No 5.

A public infeftment was given to a man and his wife in conjunct see. A base infeftment to a third party intervened before confirmation. The effect of the confirmation drew back to the date of the public infeftment, because the base infefter had acknowledged the conjunct fiar's right, by stipulating for her consent to his right.

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The young Laird of Aiton and the Lady pursuer, then his contracted spouse, by contract of marriage betwixt them, wherein old Aiton was obliged to infeft the young Laird and his future spouse in conjunct-fee, in the lands of Hundwood, to be holden of the superior, and conform thereto they were infeft; after which infeftment granted so to be holden, and before the same was confirmed by the superior, the old Laird and the young sell the lands to another, to be holden of themselves; and, in the contract of alienation, the buyer takes them obliged to procure the young Laird's wife, now pursuer, her consent to the alienation, and her ratification thereof in judgment; and upon this contract the buyer is infeft holden of the analzier, and by virtue thereof, in possession thereafter two or three years; and before the young Laird's decease, that infeftment given to him and his wife, is confirmed. After the husband's decease, she pursues for the duties of the lands, by virtue of her said infeftment of conjunct see; and the relict of the buyer of the lands, she being tercer, defending with the said infeftment granted to her husband, and his possession, and that the pursuer's rights and her husband's were null, being given to them to be holden of the superior, and not confirmed before her husband's right acquired for great sums; and that the subsequent confirmation could not be drawn back, in prejudice of that infeftment intervening, which was a mid impediment:—The Lords found, That the Lady conjunct-fiar had good right, notwithstanding of the alienation before the confirmation; seeing that alienation was granted to be holden of the analzier, who being their author and superior, they could not quarrel his right nor her's, which were one; likeas the buyer had acknowledged that right, by taking the seller obliged, under a pain, and for which pain they had obtained sentence, to procure the Lady, now pursuer, her consent habili modo, to the said alienation; and so they could not quarrel the pursuer's right, upon that alleged nullity; especially the said nullity being supplied by a confirmation, perfected in her husband's lifetime; therefore the allegeance was repelled, founded upon the said alienation, in respect of the said reply, and the pursuit sustained, upon the said confirmed infeftment.

Act. Craig. Alt. Belshes. Clerk, Gibson Fol. Dic. v. 1. p. 105. Durie, p. 421. *** The same case is reported by Spottiswood:

Sir Patrick Home of Aiton having infeft his son Sir John, and his Lady, in conjunct-fee, in the lands of Hyndwood and Fairnyside, to be holden of the superior; before that this infeftment of theirs was confirmed by Sir John Stuart superior, Sir Patrick, and Sir John his son, dispone the same lands to Mr Alexander Home, to be holden of themselves; whereupon he is infeft, and in possession for the space of seven or eight years. After Sir John's decease, his Lady, as being infeft in conjunct-fee in the same lands, pursued for the mails and duties thereof.—Alleged by him that had the base infeftment, That her infeftment was null, not being confirmed by the superior; and that it was lawful for Sir Patrick to dispone the same of new again to any other before the confirmation.—And where it was replied by the pursuer, That her infeftment was confirmed, albeit after the disposition made to Mr Alexander; and that it being confirmed quocunq tempore, should be drawn back to her sasine and contract of marriage, whereupon it proceeded:—Duplied, Obesse medium impedimentum quod prabibeat confirmationem cum confirmato conjungi, viz. the posterior disposition to he holden of the disponer's self:——The Lords repelled this allegeance, notwithstanding, in respect: it was in materia dotis, which is most favourable in the law.—And further, Mr Alexander, in taking of the same disposition from Sir John, as well as from Sir Patrick, had in a manner acknowledged her right, which was conjunct with her husband's; likeas he had taken them both bound in the contract to procure her consent to the disposition; and so not being ignorant of her right, seemed to have taken it with the hazard. And lastly, be had provided himself of warrandice of other of Aiton's lands, but she had no other lands to take her to Quibus omnibus concurrentibus; the exception was repelled.

Spottiswood, p. 57.