A Wife's right of Liferent, held Base of her Husband, is supported by the Possession of the Husband.
La Corsinday v. Tenants
Date: 8 March 1622 Case No. No 31.
A lady was infeft by her husband, to be holden of himself for her liferent after his decease. Seven years before his death, a compriser, infeft to be holden of the superior, obtained possession. The lady had renounced other lands, to which she had right by her contract of marriage, and had obtained the above infeftment in lieu of them. She was preferred to the compriser.
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The goodwife of Corsinday being infeft by her husband in liferent of some lands to be holden of her husband after his decease, pursues the tenants for mails and duties thereof; wherein compeared for his interest, James Garioch of Kinstair, who was infeft in the same lands upon a comprising, deduced at his instance against the Laird of Corsinday, her husband, for a debt owing by him, and who, by virtue of the said comprising and infeftment, was in possession of the said land seven years before Corsinday's decease; and in respect thereof alleged, That the Lady could not be found to have right to claim the said duties, especially seeing that the excipient's infeftment was public, granted to be holden of the superior, and clad with the possession, and the pursuer's sasine was but base, given by the husband stante matrimonio. Which allegeance the Lords repelled, and preferred the pursuer upon her sasine, because the same was given in recompence of some other lands wherein she was infeft, by virtue of her contract of marriage; which lands, so provided to her, she had renounced to her husband, so that the lands libelled being given to her in place of other lands, whereof she had renounced her right, they behoved to be in that same case as if she had been provided thereto, and infeft therein by virtue of her contract of marriage; and therefore sustained her right thereof, albeit base, and preferred the same to the public right and possession of the compriser; albeit the compriser duplied, that he ought to have been preferred in that possessory judgment, by reason foresaid, of his public infeftment, holden of the superior, clad with possession, and of the baseness of the pursuer's sasine, which he alleged could not be found to depend upon a contract of marriage, as coming in place of the lands therein contained, which she had renounced; seeing that renunciation was her own voluntary deed, and that none of the leiges could have been prejudged by that base sasine, or put in mala fide to have bought the lands from her husband, far less could it hurt a compriser ex causa necessaria; which allegeance was repelled, as said is. Likeas, before the proponing of this exception, the tenants alleging that they were tenants to the said appriser, to whom they had paid their mails, and he not being summoned, no process ought to granted; this was also repelled, and therefore he compeared for his interest ut supra. The like to this decision, in terminis, was done in Huttonhall against Touch, No 34. p. 1301.
Act. Lawtie.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 89. Durie, p. 19.
