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Scottish Court of Session Decisions >>
Katharine Smith and William Duncan v Isobel Robertson. [1665] Mor 14087 (7 December 1665)
URL: http://www.bailii.org/scot/cases/ScotCS/1665/Mor3214087-002.html Cite as:
[1665] Mor 14087
A right in security is an exclusive right to the subject, but not to the rents or annualrents.
Katharine Smith and William Duncan v. Isobel Robertson
Date: 7 December 1665 Case No. No 2.
A wife not liable to her husband's creditor's apprising his jus mariti, for the rents of houses possessed by herself, for her aliment, as to years preceding the intenting the cause.
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Katharine Smith and William Duncan having apprised from Isobel Robertson and John Wilson, all right they had to a tenement, under which fell the liferent-right of Isobel Robertson his wife, jure mariti, pursue the said Isobel for payment of the mails and duties that she had uplifted, and of a part of the tenement that she dwelt in herself. She alleged, 1mo, That her husband's jus mariti, could not carry her liferent, seeing immediately after the marriage he went out of the country, and was never heard of since, and she had obtained decreet of adherence against him, and was going on in a divorce for malicious deserting.
The Lords repelled the allegeance, seeing the divorce was not complete, and this was four years anterior.
The said Isobel further alleged absolvitor for the rents of her dwelling-house for bygones, and for what she had uplifted, because she had done it bona fide cum titulo, viz. her husband's obligement to aliment her as his wife, et bona fide possessor facit fruetus consumptos suos;
Which the Lords found relevant, and that albeit her husband would be liable for these rents, which alimented his wife, yet not she.
