Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. V.

Possession upon a right good ex facie, although liable to objections;

M'Caula
v.
Watson

Date: 19 January 1636
Case No. No 20.

A husband not having claimed his right of courtesy during his life; his executors could not claim it in prejudice of a singular successor from the heir of the heir of the heiress.

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The husband of an heretrix of a tenement of land in Edinburgh, who, surviving his wife, had the right and benefit of curiality competent to him, and who survived his wife 30 years after her decease, during all which time he never claimed the benefit of his curiality, but was silent; after his decease the executor confirmed to him pursuing M'Caula. who had bought the land from the heir of the heretrix, and who all this time had, by virtue of his right foresaid intromitted with the mails of the said land, for refunding of the mails so intromitted with by him; and he alleging, that the curiality never being sought by the husband, during the space foresaid of 30 years at least, which space he outlived after his wife's decease; it must be presumed thereby in law, that he tacite had renounced and quitted that benefit, and that the saids bygone mails being fructus bona fide percepti & consumpti, by virtue of a right never interrupted by the husband's self; therefore the same cannot be craved by any, as either heir or executor to him; his right being only a personal privilege, competent allenarly to himself to have sought it, if he pleased, and not having done it, it must expire with himself: even as if a lady tercer, who had right to claim her terce, if she had deceased, never having sought it, not being served or kenned thereto, her executors or heirs could never have right after her decease to claim the same. And the other party answering, that this was such a right competent to the husband, that needed no other title or declarator, but belonged to him hoc nomine, as husband, and so being his properly, it must pertain to his executors, even as the duties owing to a liferenter pertain after the liferenter's decease to the liferenter's executors, which must be alike here, the husband being a liferenter by the law of Scotland without any other title: and the living of the husband so long, and not claiming the same, could not have prejudged himself, if he had claimed it in any year before his decease, for all the bygones wherewith he had intromitted, to seek the years preceding, and so it must be also proper to his executors as to himself; and the similitude of a terce holds not, because the lady, who might pretend the right, never being served nor kenned, would not have bad right in her own time to pursue therefor herself, and far less her executors could do the same, seeing there is required a brief out of the Chancellary, and a kenning by the Sheriff for her title; but here there is no necessity of a title, but only that he was husband, and for the husband's cessation he was all that space out of the country. The Lords found the allegeance relevant, notwithstanding of this reply; for they found, that this courtesy being a benefit competent to the husband, who sought not the same, conform to the law and consuetude of this realm, therefore his executors could not seek the same, especially after so long a time, where the mails of the house libelled were uplifted and spent, by virtue of an heritable title, never interrupted within the space of the years acclaimed, and therefore assoilzied.

Act. Stuart & Sandilands. Alt. Nicolson& M'Gill. Clerk, Gibson. Fol. Dic. v. 1. p. 108. Durie, p. 788.

*** see This case by Spottiswood voce Courtesy.