Subject_1 HUSBAND and WIFE. Subject_2 DIVISION IV.
The Husband's powers with regard to the management of the common stock, and of the Children.
Irvine v. -
Date: 10 December 1623 Case No. No 134.
The second husband of a liferenter, with her consent put the fiar in possession. She was barred from again removing him.
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One —— Irvine being infeft, conform to a contract of marriage, by her husband, in certain lands to be held of himself, and thereafter, she coming in actual possession of the same, really, by labouring thereof, by the space of many years after her husband's decease, thereafter, marrieth a second husband, in whose time, her husband, with her consent, as was alleged by the defender, put the said liferenter's son, who was fiar of the same land, in possession thereof, who became, and remained in the possession thereof, for the space of two years; and which son sells the same lands to a stranger, who also receives the possession from the son, disponer thereof, by the space of seven or eight years, the wife and her husband living together all this time; after which, the liferenter's second husband foresaid dies, and the relict pursues the acquirer of the right from her son as said is, to remove from the land by virtue of her liferent-right and infeftment foresaid. Which action was not sustained, for the Lords found this allegeance, proponed upon the defender's right acquired from her son, who was heritably infeft in the lands, albeit after her liferent, clad with possession foresaid, relevant, to elide this removing, in respect the defender offered to prove, that the son fiar was in possession, put therein by the husband, with his wife's consent, who was liferenter, and that his being in possession, and infeft, put the defender in bona fide to buy from him, and so was in bona fide to defend against this removing; neither was it respected that the pursuer replied, that there was no deed done by her to take away the right of her liferent; for albeit she consented to the deed done by her said second husband, in putting her son in possession, yet that was not a reason to take her right from her, but that she might lawfully claim the same, whenever her husband died, she being in real possession of before, as said is. The exception was found relevant against the removing, and the consent ordained to be proven by the woman's oath, but prejudice to her to pursue declarator upon her right, as accords of law.
