Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

George Berill's Relict
v.
His Creditors

Date: 25 November 1626

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In a double poinding betwixt the Relict of George Berill and the Creditors of the said George, disputing for the mails and duties of some houses in Edinburgh; the relict claiming the same by virtue of her infeftment of conjunct-fec thereof, granted to her conform to her contract of marriage, whereby her father-in-law, father to the said George her husband, is obliged to provide the fee of the said houses to his son, and to her in conjunct-fee, and, conform thereto, her husband and she was infeft, and so thereby claimed the said duties; and, on the other part, the creditors of the husband of the relict, who, for debt owing by the husband, had comprised the said lands, and so claimed the right thereof, wherein they alleged they ought to be preferred to the relict, in regard that, before the contract of marriage, the relict's husband, their debtor, was infeft lawfully in the fee of the said lands, whereof he was never denuded lawfully by the said contract of marriage in favours of his wife, nor no otherwise, seeing the relict's right flowed from her husband's father-in-law, who was denuded by the preceding fee given to his son long before that contract of marriage, and the same flowed not from her husband, for she was infeft upon her father-in-law's resignation, and not upon her husband's resignation, who only had the right, and stood then infeft, and not the father-in-law; so that the son's right being apprised by his creditors, they ought to be answered:—This allegeance was repelled, and the relict was preferred to the creditors, in respect of the said contract of marriage containing the said provision of fee and conjunct-fee made by the father to his son and good-daughter, which contract was subscribed by the son, and who thereafter was infeft with his wife in the said land, and thereby the husband had in effect passed from the prior infeftment, subscribing the contract and accepting the posterior infeftment conditioned in the contract. And so the case of the relict was thought more just and favourable, depending upon a contract of marriage, which ought not to be elided by any fraudulent deed done by the creditors ex post facto, after the said contract and infeftment of the relict's.

Act. Mowat. Alt. Stuart. Gibson, Clerk.

Page 235.