A Wife's right of Liferent, held Base of her Husband, is supported by the Possession of the Husband.
Lady Burgy v. Her Tenants, and Sir John Strachan
Date: 18 July 1667 Case No. No 37.
The husband's possession is accounted the wife's possession, so as to validate her base right; although it be not the natural possession, but by tenants, wadseters, &c.
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The Lady Burgy pursues the tenants of her liferent lands to remove; compearance is made for Sir John Strachan, who alleges that he stands publicly infeft in this land, and in possession, and will not fuster his tenants to remove.—It was replied, That the pursuer's infeftment in liferent is long before Sir John's, and could take no effect till now that her husband is dead.—It is answered. That the Lady's infeftment is base, and, therefore, though it be prior to Sir John's public infeftment, it cannot be preferred thereto; unless it were alleged it was clad with possession before the public infeftment, either by the Lady's own possession, or at least by her husband's possession; but she cannot allege either, because these parties were in possession from the date of her infeftment, till the date of this public infeftment.—It was answered for the Lady, That she offered to prove, her husband was in possession after her infeftment, and before the defender's infeftment, by himself, or at least by those who derived temporary, or redeemable rights from him, or his authors, as liferents, wadsets, and unexpired comprisings.—It was answered, That albeit favore matrimonii the husband's possession, though common author, be counted the wife's possession, yet the possession of a wadsetter, or appriser, are neither said to be the wife's possession, nor the husband's, because they possess proprio jure, and the husband had only a reversion.
The Lords found the allegeance relevant for the Lady, that her husband possessed after her infeftment, and before the public infeftment, either by himself, or by any deriving a temporary right from him, or his authors.
Fol. Dic. v. 1. p. 89. Stair, v. 1. p. 475.*** Dirleton reports the same case:
A base infeftment given by a husband to a wife, was sustained after the husband's decease, as public, and clad with possession, albeit the husband was not in possession the time of granting the right: In respect, either he, or others, by redeemable rights and tacks given by him, came in possession thereafter.
