A Wife's right of Liferent, held Base of her Husband, is supported by the Possession of the Husband.
Murray of Lochmaben v. Scot of Harden
Date: 23 March 1622 Case No. No 32.
A lady infeft base by her husband, for her liferent, was in mora after his death, and did not take steps to attain possession. She was consequently excluded in a competition. See No 41. p. 1309.
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In a decreet arbitral betwixt Scot of Bonnitoun and Scot of Haining; Scot of Bonnitoun and his heirs are decerned to have three chalders of victual yearly and perpetually out of certain lands pertaining to Haining; which being bruiked, conform to the decreet, and uplifted by Bonnitoun, and also by his heir after his decease, the heir thereafter remaining year and day at the horn, John Murray of Lochmaben, as donatar to his liferent, pursues for that yearly duty during the rebel's lifetime; against which Scot of Harden, donatar to the single escheat of this same heir, alleged the same belonged to him by the single escheat, in respect the decreet arbitral fell under the single escheat; and albeit thereby the victual was ordained to be paid to the heir yearly thereafter perpetually, yet that could not cause it pertain to the donatar to the liferent, seeing it was neither a liferent right to the said heir, nor an heritable right, and had no holding, nor no lawful security perfected thereupon; without the which, it could not fall under a liferent escheat, but behoved to pertain to him by virtue of his single escheat acquired long before this donatar's right: Which allegeance the Lords repelled, and found no more fell under the single escheat, but so many years bygone as were owing the time of the giving of the said single gift, and that all the rest fell under the liferent.
In this same process, the relict of Scot of Haining having compeared and alleged that her husband, (out of whose lands, the foresaid yearly duty of three chalders victual was appointed to be paid by the said decreet arbitral,) had by charter and sasine infeft her in the said lands, before the date of the said decreet during her lifetime; so that the said decreet being after her right, and she not being a submitter nor consenter to the decreet, the donatar, nor the rebel's self, could have no duty out of the foresaid lands during her lifetime. This allegeance the Lords repelled, because the donatar offered to prove by reply, that the charter and sasine were but base, given by the husband to the wife. Likeas Scot of Bonnitoun, during his lifetime, and after his decease, his heir the rebel, whose liferent was craved, remained in possession, not only daring the lifetime of the relict's husband, but also diverse years after his decease; the relict doing no lawful deed to recover possession by virtue of her right, nor quarrelling the rebel's possession, which she might have done after her husband's decease, if her right had been lawful; but suffering the party to bruik the said victual conform to the decreet arbitral, so that now she cannot obtrude that right. Which reply the Lords admitted to the pursuer's probation. See Escheat.
