Scottish Court of Session Decisions

Subject_1 IMPLIED DISCHARGE and RENUNCIATION.
Subject_2 SECT. XIII.

Effect of Consent.

Forbes
v.
Innes

Date: 8 January 1668
Case No. No 81.

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In the case, Forbes contra Innes and Dalgarno, the Lords found, That a wife having no right for the time, to lands disponed by her husband, and having, at the desire of the buyer, consented and sold her right, if she thereafter acquire from another person a right to the said lands, is not by her consent concluded, but may pursue and evict the lands upon her right; her consent operating only, that upon any right from her husband, or then in her person, she cannot question the right whereto she hath consented; and the brocard that jus superveniens accrescit being to be understood of jus superveniens auctori, whereas a consenter is not author.—See Jus Superveniens, &c.

Alt. Lockhart, Wedderburn, & Thoirs. Fol. Dic. v. 1. p. 438. Dirleton, No 128. p. 52. *** Stair reports the same case:

Mr John Forbes, as assignee to Margaret Allardice, having obtained decreet of removing against Margaret Innes, for removing from the lands of Savet, wherein the said Margaret Allardice is infeft in liferent; which being suspended, it was alleged, 1mo, That this pursuit is to the behoof of Margaret Allardice, who could not obtain a removing against the defender, because the defender's husband being infeft by the said Margaret Allardice's husband, and author of the lands of Savet principally, and of the lands of Govan and others in warrandice, the said Margaret Allardice did consent to the disposition of the warrandice lands, by which she obliged herself to do no deed in the contrary of that right, and is also bound in warrandice with her husband; ita est her pursuing this action is a deed in prejudice of the right of warrandice-lands, in so far as thereby the person having right to the principal lands, upon eviction recurs upon the warrandice lands, and so the consenter's own deed prejudges the same. It was answered, That by deeds contrary to warrandice were only understood some right granted by the disponer or consenter, in prejudice of the right consented to, but nowise a pursuit upon any other right of the consenter; for it were against reason and justice, that a purchaser, to make himself secure, requiring a wife's consent to lands to which she had no right either in principal or in warrandice of other lands, that her consent should prejudge her as to her liferent lands, of which there was no mention; and as to her personal obligement to warrant the lands wherein she was never infeft, it is null, and can never oblige her, being a wife.

The Lords found that this warrandice did not oblige the wife, and that her consent did not hinder her to pursue upon her own liferent, albeit ex consequente her pursuit excluded one having a posterior right to her liferent lands, who thereupon had recourse to the warrandice lands, to which she consented, seeing she had granted no right prejudicial to the right consented to.

It was further alleged, that the said Margaret Allardice agreed with the person having right to her liferent lands, principally that she should accept the warrandice lands instead of her liferent lands, which excambion putting the right of the warrandice lands now in her person, she who consented to the right thereof, can never come in the contrary of her own consent to prejudge the same. It was answered, That a consent cannot exclude any supervenient right of the consenter, but only such rights as the consenter had the time of the consent; it is true that a disponer with absolute warrandice, if he acquire a right, it accresces to his successor, but it is not so in a consenter, whose warrandice is not found to be obligatory, further than as to the rights in the consenter's person at that time.

Which the Lords sustained.

It was further alleged, That the pursuit as to the behoof of the heir of the disponer, of the lands in question, whose predecessor being bound in absolute warrandice, he can make use of no right prejudicial to his warrandice; 2dly, Albeit he be not heir, yet he hath behaved himself as heir, and thereby is liable to fulfil the defunct's warrandice, and so cannot come against it. It was answered, That behaving as heir being a vitious passive title, is not sustainable by way of exception in this case.

The Lords sustained the same, and found both members of the allegeance relevant.

Stair, v. 1. p. 499.

*** See the sequel of this Case, No 53. p. 1322.