Scottish Court of Session Decisions

Subject_1 PRESUMPTION.
Subject_2 DIVISION I.

Presumed Alteration and Revocation.

Marjoribanks
v.
Mellerstains

Date: 4 February 1607
Case No. No 3.

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In the removing pursued by Joseph Marjoribanks against the Lady Mellerstains, she excepted, That she had infeftment in conjunct-fee of the said lands given to her by her husband in anno 1587. It was answered, It was null, because he was then minor, and had curators who had not consented to it; as likewise, that it was done inter virum et uxorem, stante matrimonio, quæ de jure prohibita et nulla est. It was answered, That that nullity received an exception, si morte confirmetur. It was duplied, Non potest morte confirman, si revocetur ante mortem, which was done in this case; because the Laird of Mellerstains in his own lifetime, and long after the Lady's infeftment, had given infeftment of the same lands to William Napier the pursuer's author; which the Lords found not to be of the nature and effect of a revocation of the Lady's foresaid infeftment.

Fol. Dic. v. 2. p. 133. Haddington, MS. No 1286.