Whether Possession be requisite to give effect to Base Infeftment.
Bell of Belford v. L Rutherfoord.
Date: 27 January 1669 Case No. No 2.
Base infeftment, without possession, is sufficient to exclude the terce; for as to the husband's heir or relict, it is a sufficient right.
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Bell of Belford being infeft in an annualrent by the deceased Lord Rutherfoord, out of certain lands, pursues a poinding of the ground. Compearance is made for my Lady Rutherfoord, who alleges she ought to be preferred, as being infeft in an annnalrent of 2000 merks yearly, upon her contract of marriage, before this pursuer: 2dly, That she ought to be preferred, for an annualrent of 2000 merks yearly of additional jointure, wherein she stands also infeft publicly; and albeit her infeftment be posterior to the pursuer's, yet his infeftment being base, not cled with possession before her public infeftment, she is preferable.—The pursuer answered, That before the Lady's infeftment on her additional jointure, he had used a citation for poinding of the ground, and is now insisting for a decreet thereupon, which must be drawn back to the citation, and is sufficient to validate the base infeftment, that it be no more from that time furth reputed clandestine.
Which allegeance the Lords found relevant, and preferred the pursuer to the Lady's additional jointure.
It was further alleged for the Lady, That she was served, and kenned to a terce of the lands in question, and must be preferred, as to a third part of the profits of the lands, conform to her infeftment upon her terce.—The pursuer answered, That her service, kenning, and infeftment of terce, are posterior to his infeftment of annualrent, and posterior to his citation foresaid thereupon.—It was answered for the Lady, That her terce being a right constituted by law, by the death of her husband, albeit it be served and kenned after, these acts are but declaratory of her right by her husband's death, and do constitute her right, not from the date of the service, but from her husband's death, which was before the pursuer's citation; so that his infeftment, granted by her husband, before his death, not having been cled with possession in the husband's, life, it remained at his death as an incomplete right, which cannot exclude her from her terce.—It was answered, That a base infeftment is of itself a valid right, although by a special act of Parliament posterior, public infeftments are preferred thereto, unless the base infeftment hath been cled with possession; which cannot be extended beyond the terms of the act of Parliament, and so cannot be extended to a terce; but as the base infeftment would have been a sufficient right, against the husband and his heirs, so it must be esteemed as debitum reale, affecting the ground; and his Lady can have no more by her terce than a third of what was free unaffected before his death.
The Lords found the base infeftment sufficient to exclude the terce pro tanto, and that as to the husband's heir or relict, it was a sufficient right. See Terce. See Sect. 3. h. t.
Fol. Dic. v. 1. p. 87. Stair, v. 1. p. 594.*** Gosford reports the same case:
In a competition for preference to the mails and duties of the lands of Rutherfoord, the Lady insisting not only for her conjunct-fee provided by her contract of marriage, as to which she was preferred, but likewise for an additional jointure and for a terce for which she was kenned; and the Lord Ballenden and Bell of Belford craving preference upon their infeftments of annualrents out of the said lands:——The Lords did prefer them to the Lady as to the additional jointure, being a mere donation, and tacitly revoked by the said infeftments for annualrents granted to lawful creditors; as likewise did prefer them to a right of terce; notwithstanding it was alleged for the Lady, that their infeftments were base, never cled with possession, nor made public during the Lord Rutherfoord's lifetime; for they did find, that infeftments being granted by a husband, albeit base did divest of the right of property, or did affect the same, being infeftments of annualrents, so that a Lady tercer could have no right but with the burden thereof. See Terce.
