A Wife's right of Liferent, held Base of her Husband, is supported by the Possession of the Husband.
Elizabeth Nisbet, v. Murray
Date: 23 November 1664 Case No. No 36.
A wife's base rights, flowing from her husband, in security of her future liferent provisions, although not constituted by contract of marriage, as she cannot possess during his life, are validated by his possession, which is accounted her's.
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Elizabeth Nisbet pursues a poinding of the ground, of certain lands wherein she was infeft, by James Wood, her husband. Compearance is made for Patrick Murray, who alleged that he is infeft by her husband, his debtor, in the same lands, and ought to be preferred.—It is answered for the Lady, That she ought to be preferred; because both their annualrents being base, albeit her infeftment be posterior, yet her husband's possession being her possession, and she being infeft before Patrick Murray's infeftment was clad with possession, must be preferred. It was answered for Patrick Murray, first, That a husband's possession should be the wife's possession, cannot be understood in an annualrent, because her husband never possessed an annualrent, but the property.
This the Lords repelled, and found the possession of the property, as jus nobilius, to contain the annualrents eminenter.
2dly, Patrick Murray alleged, That the husband's possession being the wife's, is only introduced in favour of contracts of marriage, favore dotis: That because wives cannot possess, during their husband's life, therefore his possession is accounted theirs. But this infeftment in question, is not founded upon the contract of marriage, but upon a posterior charter, of a different tenor. 3dly, Patrick Murray used citation before Candlemas next after the Lady's infeftment, and thereupon obtained decreet in March, which must be drawn back to the citation: So that the husband could have no possession betwixt the Lady's charter, and his diligence, there being no intervening term.—It was answered for the Lady, That this privilege is allowed to wives; that their husband's possession is theirs during their marriage, favore dotis, which may be without a contract.
2dly, The husband being in present current possession, from the very date of the wife's sasine, his possession is sufficient to validate hers.
The Lords found the Lady's infeftment to be first validate by possession.
It was further alleged by Patrick Murray, that this infeftment was donatio inter virum et uxorem, not being founded on the contract of marriage, which was satisfied before; at least it is to the prejudice of him a lawful creditor, who was infeft before the Lady; and therefore seeing the Lady's infeftment is so free and lucrative, both parties being now disputing the possession and power therein; the Lady's infeftment cannot prejudge him. That the contract of marriage was satisfied, he condescends thus; that the husband was obliged to infeft his wife in certain lands, and to make them worth eighteen chalders of victual, or otherwise, at her option, to infeft her in an annualrent; ita est, she made her option, and was infeft in the property, after which she cannot return to this annualrent in question.—It was answered for the Lady, That the clause being conceived in her option, must be interprete her option not to receive the infeftment, but to enjoy either of the two she pleased. 1st, A sasine cannot import her choice, which might have been given by her husband, without her knowledge upon the precept, contained in the contract of marriage, unless it were instructed, that she did accept the same by a sasine, propriis manibus, or otherwise; and that her infeftment was a valid effectual infeftment. 2dly, Albeit that article of the contract of marriage were satisfied by taking her choice; yet she being thereafter infeft, upon her charter produced, in her liferent lands, and in the annualrent in warrandice thereof, or with power to her to make use of the annualrent itself, principaliter, at her option; albeit her choice once made, will exclude her from the annualrent, principaliter, yet not in so far as she is infeft therein, to warrant and make up the principal lands; which can be accounted no donation nor deed, in prejudice of a creditor, because it doth but make real and effectual the personal obligement of warrandice contained in the contract.—It was answered for Patrick Murray, That these allegeances non competent hoc loco, but he must only poind the ground, until the Lady obtain a declarator of what is defective of her liferent lands; but cannot come in by way of reply.
The Lords found, That the Lady's acceptance of the liferent infeftment, satisfied the obligement in the Contract of marriage, and did not sustain the posterior charter, to give her any further choice; but sustained the right of annualrent constitute therein, in warrandice of the liferent lands hoc loco; and ordained the Lady to condescend upon the several rooms, what they paid, and what was wanting, that she might be preferred in the first place, and Patrick Murray in the second place. See Husband and Wife.
