Scottish Court of Session Decisions

Subject_1 COMMON INTEREST.

Denholms
v.
Denholms

Date: 17 July 1638
Case No. No 1.

The eldest heir-portioner has the custody of the writs, and must give transumpts to a younger sister upon the equal expenses of both; though the younger sister may have acquired right to another sister's proportion, and so have a greater interest than the eldest.

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The three daughters of umquhile Andrew Denholm, being his heirs in a tenement of land in Edinburgh, which was, by decreet of the town of Edinburgh, divided among them and their husbands, viz. George Ross, who married the eldest, and Andrew Oswald, who married the youngest, and which Andrew also had acquired the second sister's part of the land, and so thereby he had right to the two part of the land; this decreet of division being drawn in question by way of suspension, wherein the sisters and their husbands controverted, whether the eldest sister and her husband should have the principal original writs delivered to her, or if the same should be delivered to Oswald; which he alleged it ought to be, seeing he was heritor of the two part, and that the principal writs should go with them, who had right to the greatest part of the lands; and that the transumpt should only be delivered to the other sister, (although eldest), she having only right to the third part of the land: The Lords found, that the principal and original writs should be delivered to the eldest sister, to be keeped by her; and that she ought to have the keeping of the same, which they ordained to be made furthcoming to the other sisters at all occasions, when necessity and reason should require the same: For the acquiring of the other sister's right by the third sister (whereby the two part of the lands were in the person of the one sister) was found not to derogate to the privilege of primogeniture, competent to the eldest, no more than if all the three sisters had retained ilk one their own portions, quo casu the eldest would have had ever the preference in the custody of the principal writs; and albeit the one sister had sold her right, either to her other sister, or to a stranger, no reason was therefore that that deed should derogate to the privilege of the eldest: And the Lords found, that the transumpts should only be delivered to the other sister, who had right to the two parts; and which transumpts, they found, should make as great faith as the principals; and ordained these transumpts to be made upon the equal half charges of these parties, the one-half to be paid by the eldest sister, and the other equal half by the other sister, who had right to the two parts of the land. See Heirs Portioners.

Act. Oswald et Primrose. Alt. ——. Clerk, Gibson. Fol. Dic. v. 1. p. 154. Durie, p. 858.