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Scottish Court of Session Decisions >>
Earl of Dunfermline v The Earl of Callander. [1683] Mor 8244 (28 March 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Mor2008244-009.html Cite as:
[1683] Mor 8244
What is comprehended under a liferent right of lands.
Earl of Dunfermline v. The Earl of Callander
Date: 28 March 1683 Case No. No 9.
A conjunct fiar cannot cut wood for sale, though he may for necessary use.
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In the process pursued at the instance of the Earl of Dunfermline, as having right from his father, who was heir served and retoured to his grandmother, intented against this Earl of Callander, as representing his uncle, who was obliged to provide the half of the conquest during the marriage betwixt the Lady and him, to her and her heirs, in case there should be no heirs of the marriage surviving; the Lords found the obligement to provide the half of the conquest to his Lady and her heirs did state him only to be in the case of a conjunct fiar, and so could not cut the woods for selling, except for necessary use.
Fol. Dic. v. 1. p. 536. P. Falconer, No 64. p. 142.*** Harcarse reports this case:
My Lord Callendar, who had a conjunct-fee of the conquest lands, having sold the woods of Callendar, it was found, that the half of the price thereof did fall to the Lady's heirs, who had right to the fee of the half of the conquest; albeit it was contended, That though a liferenter by constitution have but usum, yet conjunct fiars and liferenters by reservation have usumfructum; and that Craig is of opinion they may sell woods, and de consuetudine parents after resignation of the fee of lands to themselves and their wives in conjunct-fee, and to the heirs in fee by way of destination, use to dispose of the woods that come to be cut during their lives. But it would be a different case if resignation were made to any nomination.
