A Wife's right of Liferent, held Base of her Husband, is supported by the Possession of the Husband.
La Ednam v. The Laird
Date: 23 July 1628 Case No. No 33.
A tack was preferred to a base infeftment, granted afterwards by the landlord to his wife, though her sasine was taken before the tacksman obtained possession.
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In an action for poinding of the ground, Lady Ednam, the Lords found, That a sasine of an annualrent, taken at any part of the barony, out of which the annualrent is disponed to be uplifted, where all the lands of the barony ly contiguous, doth affect all the lands and others belonging to the barony, the same lying contiguous as said is; albeit the said sasine be not taken at the place destinate and appointed for taking of sasine in the charter and evidents of that barony, made and granted to him, who is the granter of the annualrent; and there being exception proponed, that the defenders had a tack of the lands, set for an onerous cause by him, who was the pursuer's author, and before the pursuer's right whereby they alleged, That the ground could not be poinded for any more at the pursuer's instance, but for the duty of their tack; seeing, conform to their tack, they were in possession of the land, diverse years before the decease of the setter, and had paid the tack duty to the setter, and had reported his discharge thereon: This exception was found relevant, notwithstanding of this reply, That the pursuer's sasine was given for implement of her contract of marriage, and so was the more favourable; and the same was more real than a tack, which tack could not maintain the excipients, except it had been clad with possession before her sasine; for her husband's possession was her possession, and no subsequent possession of the tacksman, after her right, could make the tack to subsist against her. Which reply was repelled, and the tack sustained, being set for an onerous cause to lawful creditors, and before her sasine; which tack being clad with possession in the setter's lifetime, albeit not before the pursuer's right, was found sufficient; and found that the defenders needed not to allege possession before her right, and so the said exception was admitted. See Union.
