Scottish Court of Session Decisions

Subject_1 PERICULUM.
Subject_2 SECT. IX.

Fiar and Liferenter.

Rebecca Adamson
v.
Dean of Guild Nicolson

Date: 15 December 1704
Case No. No 75.

A house, in the possession of a liferentrix, was casually burnt. The Lords found the heritor liable to the liferenter in no more but the annualrent of the sum to which the price of the waste ground was liquidated, and at which he had sold it.

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Lord Tillicoultry reported Rebecca Adamson, relict of George Graham, merchant, against Dean of Guild Nicolson of Trabroun. The said Rebecca charges the Dean of Guild on a liferent-tack of a house at the entry to the Parliament Close, to put her in possession of the same. He suspends on this reason, that the charge is most unwarrantable, seeing the tack bears she was in, possession at the very time of the setting, and so there was no clause warranting a summary charge; 2do, Though it were turned to a libel, yet this house being burnt down by that dreadful fire on the 3d of February 1700, the Magistrates cognosced the value of the ground, and apprised his fee and property to four years purchase, at which rate he sold it; and so it being now rebuilt, he can be liable in no more but the annualrent of the price he got since the time he received it; for it being consumed vi majore, without his fault, as the property ceased during its lying in rubbish, so must her usufruct, and all other servitudes do, ubi perit subjectum. Answered, She only insists for repossession, being put from it by the fire; and us to the share she may acclaim, there is a notable rule laid down by the 10th act of Parliment 1551, for rebuilding the Burnt tenements in Edinburg consumed by the English, after the victory obtairred at Musserburgh, in the last article whereof it is provied, that liferenters of such burnt lands, now rebuilt, shall have right to a third of the rent which the house paid before the burning; and she subsumes, that her houses paid 500 merks yearly, and so the Dean of Guild must pay her the third of that mail ever since the rebuilding, and yearly in time coming; and this rule, has been followed by subsequent Parliment, as by act 58th, 1573; act 226th, 1594; and act 6th, 1663. Replied, The act 1551 was but a temporary regulation, and concerns ground-annuals due to chaplains, and other kirkmen, by mortifications; and though Mr William Clark's waste land at the Cross, and some others, were valued higher, at six or seven years purchase, yet he could get no more but four years, and is willing to give his oath there was neither codhusion nor concealment, and he always, offered her the annualrent of that sum.—The Lords found the charge unwarrantable; but, in respect of the suspenster's consent they sustained it as a libel; and found him liable in no more but he annualrent of the four years purchase, to which the price of the waste ground was liquidated, and for which they decerned during the liferenter's lifetime. The Dean of Guild's son, and Thomas Boys, writer, being cautioners in the suspension for him, they applied to the Lords by a bill, and represented, that the charge being found unwarrantable, and only turned to a libel, of consent, otherwise she behoved to have raised a new pursuit, they were, by the law and practiques of the nation, liberated of their cautionry; and, therefore, craved up their bond.—The Lords found them free, and this conform to prior decisions, cited by Stair, in his Institutions, Lib. 1. Tit. 17.

Fol. Dic. v. 2. p. 61. Fountainhall, v. 2. p. 247.