Scottish Court of Session Decisions

Subject_1 HUSBAND and WIFE.
Subject_2 DIVISION IV.

The Husband's powers with regard to the management of the common stock, and of the Children.

Keith
v.
Simson

Date: 2 March 1637
Case No. No 138.

A wife infeft in conjunct-fee, cannot be prejudiced by an infeftment to a third party flowing from her husband.

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One Geills Keith being infeft with her husband in conjunct-fee of the lands of ——. and after his decease, pursuing Simpson to pay the ordinary duties of the lands two or three years bypast, since the time of her husband's decease, and he alleging, That he was heritably infeft in the lands by the L. Dalgety, who was heritably infeft therein by her husband, and by virtue whereof he had been all the years libelled, and many others of before bona fide possessor, therefore he ought to be assoilzied from all payment of any bygone duties, in respect of his right standing, which has never been interrupted by warning or otherwise;—The Lords repelled the exception, in respect of the relict's infeftment of liferent produced, and that she could not be prejudged therein by any disposition flowing from her husband, which the pursuer had no necessity to know or to pursue to be suspended during her lifetime, albeit the defender had acquired his right immediately from Dalgety; and found, that the defender's bona fides could not defend him from paying of the duties since the husband's decease, the relict having done diligence by this pursuit so shortly after his decease, viz. within two or three years, for the which the pursuit was sustained, for a quantity modified by the Lords yearly, the years libelled, and the said allegeance was repelled. And it being further alleged, That the defender cannot be convened for the duties of the lands libelled the crop and year, which was one of the years pursued for; because the pursuer having warned him to remove before the term, he for obedience of the warning removed, and left the ground void;—and the pursuer replying, That that was not enough, except he had come, or sent to the pursuer, and had renounced the right and possession of the lands before notaries and witnesses, and had taken instruments thereupon; otherwise, upon the defender's alleged naked leaving of the ground, the pursuer could never have been in tuto to have entered to the possession of the land without danger, especially where the defender was clothed, and clothes himself, as he does, with a title; so that without renouncing by writ, she could never have been freed of danger of ejection. This allegeance was found relevant, notwithstanding of the answer. And the Lords found no necessity that the defender should have renounced his possession to the pursuer; but found it sufficient to allege and prove by witnesses, that for obedience to the warning, he left the ground waste.

Act. Dunlop. Alt. Hay. Durie, p. 834.