A husband was bound to infeft his wife in the conquest of all lands, annualrents, &c. He lent out money upon annualrent, bearing no clause of infeftment, yet it was found that the clause comprehended this subject.
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A Husband being obliged to his wife in his contract of marriage, to infeft her in liferent in all lands and annualrents, which he should conquish and acquire the time of their marriage; and he having lent out some monies to certain debtors by obligations, whereby they were obliged yearly to pay to the creditor 10 for 100, ay and while the principal sum were paid; the saids bonds neither bearing a clause of infeftment therefor, nor of paying annualrent as well not infeft as infeft, but being of the foresaid tenor, to pay annualrent ay and while the principal sum were re-paid; it was found, That the heir of the husband, albeit he could not give her infeftment and sasine of the said annualrent, he neither being infeft therein, nor the creditor bound to give him infeftment, yet that the heir should give her her liferent right habili modo, of the said sums, albeit the tenor of the contract proports as said is.
Clerk, Hay.
Fol. Dic. v. 1. p. 197. Durie, p. 428.*** Spottiswood reports the same case:
By contract of marriage passed between James Douglas and Elizabeth White, he was obliged to infeft her in all lands and annualrents conquest by him during the marriage. After his decease, she and Mr Thomas Reidpath, her second husband, pursued the heir of the first marriage, Robert Douglas, to infeft her in liferent, in the annualrents of certain heritable bonds acquired by umquhile James in his time. Alleged, That clause in the contract was only to be understood of such annualrents wherein James was infeft, or at least might have been infeft into; but so it is, that there was a number of bonds whereof she craved her liferent, whereupon no infeftment could follow, bearing only an annualrent of ten for the hundred. The Lords found that she should have her liferent, albeit they had not the clause (as well not infeft as infeft) and although the heir could not infeft her in such annualrents, yet they found that she should be provided to them by some other legal course.
