A Wife's right of Liferent, held Base of her Husband, is supported by the Possession of the Husband.
Lady Huttonhall v. L of Touch.
Date: 15 February 1631 Case No. No 34.
Found in conformity with No 31. p. 1299.
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The Lady Huttonhall being infeft in the lands of Cauldstream, upon her contract of marriage, she, for payment of her husband's debts, consents to the alienation of the same lands, and renounces her liferent therein in April 1621; at which very time, her husband gives her infeftment in Huttonhall, in recompence of the former. After this, in 1624, the L. of Touch, and Alexander Cranston of Moriston, comprise Huttonhall for a debt paid by them for Huttonhall, before the infeftment given to his wife of Huttonhall, and are infeft therein, and in possession six or seven years. After Sir John Home of Huttonhall's decease, his Lady pursued the tenants for mails and duties of the lands.—Alleged for the comprisers, She could not seek the mails this way, brevi manu, she never having been in possession before; but she ought to seek a declarator to hear and see it found, that their infeftment upon their comprising should sleep, and take no farther effect during her lifetime.——The Lords repelled this allegeance.
Next alleged her infeftment was base, and had never apprehended possession, and so could not prejudge their public infeftment clothed with seven years possession.—Replied, Her infeftment, though base, was given her in recompence of a former one which was public; and as to possession, she could have none as long as her husband lived, but how soon he died she was seeking it; and any infeftment they had was posterior to hers.—Duplied, Albeit their infeftment be posterior to her's, yet the cause of it precedes her infeftment.—Triplied, Notwithstanding of any debt owing by her husband, he might lawfully give his wife infeftment in his lands, not being inhibited before.—Quadruplied, Albeit he was not prohibited per prohibitionem judicis, yet he was per prohibitionem legis, whereby he could do no voluntary deed in prejudice of his creditors; which prejudice is clear by selling of the lands burdened with her liferent, and to burden other lands with the same, that were free before; which only made the defender's become cautioners for her husband, knowing always of a relief out of other lands unburdened.
The Lords repelled the exception, in respect of the reply, that her infeftment was given in recompence of her former of Cauldstream.
Fol. Dic. v. 1. p. 89. Spottiswood, (Conjunct Fee.) p. 59.
