In questions betwixt Husband and Wife, who understood Fiar.
Subject_3 SECT. I.
Right taken to Man and Wife, and their Heirs.
Ayton v. Jamieson
Date: 10 November 1609 Case No. No 3.
A bond was taken payable to a husband and wife, and longest liver of them two, with an obligation to infeft them, and their heirs in an annualrent. There being no heirs of the marriage, it was found, that the whole annualrent, after decease of the husband and wife, pertained to the husband's heirs.
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Bartill Tullo in Inveresk, and Jamieson his spouse, having lent 1000 merks to the guidman of Carberry, he obliged him to refund the said sum to them, and the longest liver of them two successive, at the term of payment; and failing thereof, to infeft them, and the longest liver of them two, in conjunct fee, and their heirs in an annualrent of it, furth of his lands, and to pay, as well not infeft as infeft, and to refund the principal sum upon requisition, after the decease of Tullo. The guidman of Carberry repaid the sum to Jamieson, relict of the said Tullo, and she deceasing, Ayton, assignee to Tullo, heir of the said Bartill Tullo, having obtained the contract transferred, charged Carberry to pay the annualrent. He suspended, upon the tenor of the contract ordaining the annualrent to pertain to the said husband and wife, and to their heirs, whereby the hail sum, and profit thereof, should pertain to the said Jamieson, being the longest liver; or at least, the half behoved to pertain to her heirs, seeing the sum was destined to pertain to their heirs. Notwithstanding whereof, seeing there were no heirs procreated betwixt them, the Lords found, That the hail principal, and profit thereof during the non-redemption, should pertain to the heirs of the husband, and that the heirs of the wife should have no part thereof.
