A bond being payable to a husband and wife in conjunct fee, and to their heirs, &c. the wife, though only liferenter, was found to have power te uplift the tock; but, before extract, she was ordained to give bond for re-employment of the same, to herself in liferent, and to her husband's heir in fee.
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Katharine Kinross having charged the Laird of Hunthill for payment of a bond granted to her first husband, and the longest liver of them two, and their heirs, which failing his heirs; he suspends on this reason, that she is but liferenter, and the defunct being infeft in fee, she would not renounce, but the heir.
Which the Lords sustained, and found the letters only orderly proceeded for the annualrent.
1622. July 25.—The Laird of Hunthill being obliged by bond to pay a sum to umquhile Mr Beverly, and the said Katharine his spouse, the longest liver of them two in conjunct fee, and the heirs betwixt them, which failing, his heirs, or any person he should design, whereupon they were infeft in an annualrent; the said Katharine having charged for payment of the sum, Hunthill suspended, alleging, That she was but liferenter, and he could never be in tuto till the fiar were called. The Lords, formerly found the letters orderly proceeded for the annualrent, but superceded to give answer for the stock, till some to reprepresent Beverly the fiar was called, who now being called and not compearing, the debtor alleged he could not be liable to give up the stock to the charger, being only liferenter, neither would her discharge, or renunciation of the wadset liberate him and his estate, but only a renunciation of the heir; neither did the charge at the liferenter's instance, take away the annualrent, and make the principal sum moveable, unless it had been at the fiar's instance. The charger answered, That she beeing conjunct fiar, was not a naked liferenter, albeit it resolved in a liferent; and therefore she craved that it should be declared by the Lords, that she had power to uplift the stock, and to re-employ it as formerly, and that her discharge and renunciation should be declared to be sufficient to liberate the debtor and his lands, which being so found by the Lords, the debtor's apparent heir being called, would be an irreduceable and sufficient ground of liberation.
The Lords declared as aforesaid, but before extract, ordained the conjunct fiar to give bond for re-employment of the sum to herself in liferent, and to Beverly's heirs in fee; which bond they ordained to be presently registrated, and kept by the clerk, in respect none appeared for the heir.
Fol. Dic. v. 1. p. 549. Stair, v. 1. p. 67. & 136.
