A sasine of a liferent to a wife not registered, found valid against the apparent heir of the granter, possessing on a prior disposition.
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The Countess of Carnwath insists in her action of poinding the ground. It was alleged for the defender, That the Countess' sasine was null, not being registrated conform to the act of Parliament. It was answered, That nullity cannot be proponed, either by the granter of the infeftment, or any representing him, or by any person who is obliged to acknowledge the infeftments; but the Earl is such a person that albeit he bruiks by a disposition from his father, yet his infeftment contains this express provision, that his father at any time during his life may dispone the lands, or any part thereof, and grant infeftments, tacks, or annualrents thereof; so that this being unquestionably an infeftment, he cannot quarrel the same upon the not resignation; but if his father had granted an obligement to infeft, the defender could not have opposed the same, much more the infeftment being expede. It was answered, That the provision did not contain an obligation upon the defender to dispone, ratify, or do any deed, left only a power to his father to burden the lands, which can only be understood, being done legitimo modo, and therefore the infeftment wanting the solemnity of registration is in the same case as if there were no infefment, and so is null.
“The Lords repelled the defence, and found the sasine valid, as to the defender, in respect of the foresaid provision in his infeftment.”
