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Hall and Anstruther v Blair. [1698] Mor 10423 (6 January 1698)
URL: http://www.bailii.org/scot/cases/ScotCS/1698/Mor2510423-100.html Cite as:
[1698] Mor 10423
Subject_1 PERSONAL and TRANSMISSIBLE. Subject_2 SECT. V.
Personal Faculties and Privileges, whether they may be founded on directly by Creditors.
Hall and Anstruther v. Blair
Date: 6 January 1698 Case No. No 100.
A liferenter was pursued by creditors on the estate, who had infeftments of annualrent, but had not adjudged, to uphold the houses in terms of the statute 25th 1491, and 15th 1535, or cede possession. Process sustained, tho' creditors are, not expressed in the acts of Parliament.
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Hall and Grizel Anstruther having an infeftment of annualrent upon some tenements in Perth, belonging to the deceased Robert Conqueror, they pursue Jean Blair his relict, liferentrix of these houses, who had suffered them, for want of repair, to fall ruinous, either to find caution to uphold them in terms of the act of Parliament 1491, c. 25. and 1535, c. 15. or else to cede the possession to them, upon their finding caution to pay the rent, after deduction of the annualrent of the sum to be expended by them in rendering them habitable. Alleged, Such an action is only competent to fiars and heritors of lands, as appears by the tenor of the acts founded on, so that creditors having only a servitude cannot pursue the same till first they adjudge, which gives them a right of property. Answered, This action is not only founded on the statutes, but also on the common law, where ususfructus est jus utendi fruendi salva rei substantia, and there is cautio usufructaria exacted to preserve it from destruction or embezzlements; and it were strange, where apparent heirs lie by, if creditors to the value of the lands had no remedy against a liferentrix suffering houses to decay, rather than be at the expense of upholding them. The Lords found the annualrenters had a sufficient title to pursue this action, though they be not expressed in the act of Parliament cited; yet found the relict liable on the grounds of the common law.
