If to an infeftment of lands, under a general denomination, be added a more particular description, expressing the names of the particular tenants possessing some of the lands only; this will be reckoned taxative, to limit the infeftment to the lands possessed by the particular tenants enumerated, though the rent of the parts be not sufficient to pay the sum, for the security of which the infeftment was granted.
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Sir Patrick Murray having obtained decreet of removing against Mr William Oliphant's wife, for removing from the lands of Middleton and Powflat, she suspends, that she is infeft in the lands and mains of Uphall in liferent, (she being now divorced,) of the which lands these are a part; and the party answering, That her infeftment, albeit bearing ‘the whole mains,’ cannot extend to those lands contained in his decreet, because the same bore, “her to be infeft in the whole mains, containing the lands underwritten, viz. (for these were the words of her infeftment,) the lands possessed by particular tenants, specially enumerate and exprest in the said infeftment:” And true it is, that these lands were not then, nor at any time before, possessed by these tenants; and so she cannot claim the same, seeing he offers to prove, that these lands were then possest by other tenants, viz. —And the suspender answering, That albeit some of the mains were possest by the tenants designed in her infeftment, yet that was not enough to exclude her from the rest; for that word, (viz. possest by these several tenants,) is not of that force to take away the right of the rest of the mains from her; specially seeing, by her contract of marriage, she is ordered to be provided to the lands worth 20 chalders victual yearly; and wanting these lands controverted, she will inlack three chalders victual thereof.——The Lords, in respect of the said infeftment, bearing the foresaid clause, viz. possest by the tenants specially designed therein, found, That the suspender's liferent could extend to no more of the mains, but to so much thereof, as was then possest by the saids special tenants, and could not extend to these lands acclaimed, wherein this defender was infeft, albeit after her contract of marriage; and found these words, (possest by these tenants,) not to be demonstrative, but to be taxative, and to restrict her right to so much of the mains, as then was possest by them, and that she could have right to no more; therefore admitted to the defender's probation, that these lands acclaimed were, at that time of the suspender's infeftment, possest by other tenants condescended on; and repelled the answer made by the suspender, bearing the same to be a part of the mains; for albeit they were so, yet by the restriction of her infeftment, she had no right thereto.
Clerk, Scot.
Fol. Dic. v. 1. p. 145. Durie, p. 699.
