In questions between parents and children, who understood to be fiar.
Subject_3 SECT. IV.
Whether it is expressed, that the Father is Liferenter only.
Veitch v. Robertson
Date: 9 July 1630 Case No. No 48.
A husband disponed to his second wife an annualrent out of his lands, and to the children of that marriage in fee. He afterwards sold the lands, and a son of that marriage, as fiar, competing with the purchaser, the Lords found the sale effectual.
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An husband giving infeftment to his second wife in liferent, and to the heirs to be begotten of that marriage, of an annualrent out of his lands, which lands the husband thereafter disponed, divers years after the procreation of a son in that marriage, and which son of the said second marriage being served heir of that marriage, and infeft in that annualrent, dispones the same to another, who pursues poinding of the ground therefor against the heritor of the land, who had acquired the right from the father, as said is, after the said sasine of the annualrent, and whereby he alleged, that the pursuer nor his author, as being the heir of that marriage, had no right to the said annualrent, the father remaining still fiar, who disponed the land, and which disposition absorbed the said annualrent; and the pursuer answering, That after there was sasine given to the wife in liferent, and to the heirs of that marriage in fee, of the annualrent libelled, the bairns of that marriage became fiars thereof, how soon they were born; so that thereafter, albeit the father remained fiar of the heritable right of the lands, yet his right was affected with the burden of that annualrent, so that the father could never thereafter valiably dispone the heritable right of the lands, but with the burden foresaid, and wherewith the said disposition behoved to remain affected, even as if his eldest son of the first marriage, who was universal heir, if the said disposition had not been made by the father, as said is, would have succeeded to the right of the lands, but ever with the said burden; even so must the said disposition be affected therewith.——The Lords found the disposition made by the father sufficient to exclude this pursuit, and that the fee of the said annualrent subsisted in the father's person, notwithstanding of the sasine given to the wife, and heirs of that marriage, and consequently that the father's disposition of the land was not affected with the burden thereof; so that albeit the heir might have been compelled to warrant that annualrent personally as heir, yet it was not alike in a singular successor to affect the ground against him.
Act. Stuart.Alt. Advocatus & Taylor.Clerk, Gibson.
Fol. Dic. v. 1. p. 302. Durie, p. 528.
