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Scottish Court of Session Decisions >>
Ogilvie v Scot. [1694] Mor 5652 (26 January 1694)
URL: http://www.bailii.org/scot/cases/ScotCS/1694/Mor1405652-034.html Cite as:
[1694] Mor 5652
Of facts inferring knowledge of, and consent to the right challenged. Effect of consent where the right is not known. Effect of legal steps passing of course. Effect of minority. Effect of payment.
Ogilvie v. Scot
Date: 26 January 1694 Case No. No 34.
No homologation where there is ignorance of circumstances, which, if known, might have prevented acquiescence.
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Ogilvie, relict of Scot of Brotherton, contra Scot of Comiston. She craved, that though the decreet-arbitral did not decern Comiston to give her a real right for security of her liferent, that the Lords would supply; because if he (who was turned very infirm) died, she was loose, having renounced her jointure to her son, and he was not bound; and insisted on these two heads of fraud; 1mo, That she knew not then of her additional jointure, but that it was concealed from her; 2do, That Comiston was denuded of the fee of his estate in favours of his nephew, Brotherton, before this decreet-arbitral, and so was a mere liferenter, and this was also concealed from her; which, if she had known, she would not have submitted. The Lorcs thought it a fair offer, that Comiston was willing to repone her against the decreet-arbitral. But it was represented, quod res non erat integra, her bond of provision being either cancelled or discharged to her son, who was not in the process to give it back; therefore they fixed on the above mentioned points of fact, and ordained the parties, before answer, to depone thereanent.
