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The Lords found the lands recognosced, but the Lady alleging she had a right of liferent, by virtue of the first infeftment of these lands granted to her husband, whereby he acquires the lands to himself and her, the longest liver of them two, whereby they are publicly infeft, the Lords sustained this infeftment to continue her liferent.
Fol. Dic. v. 2. p. 316. Fountainhall, MS.*** The same case is afterwards mentioned also by Fountainhall.
November 6. 1678.—In the improbation pursued by Alexander Arbuthnot against Margaret Straton, for improving a bond granted to her husband betwixt her contract and marriage, the Lords declared they would summarily call it in the Inner-house, only upon fourteen days advertisement, as being of the nature of the King's causes, which, by the regulations, and act of Parliament confirming them, have that privilege; and that because it dipt upon the crime of falsehood, and the pursuer offered formally to improve it, and interest reipublicæ ne delicta maneant impunita, and so that the probation perish not by the delaying it. But declared, where improbation is adjected to reduction, without design of investigating a crime, but only to force production, or to make the certification more effectual and strong that they would not anticipate the roll in such improbations, but they behoved to stay their ordinary course of coming in. See Appendix.
Fountainhall, v. 1. p. 18.*** Stair reports the same case:
February 14. 1678.—Arbuthnet of Knox, as donatar of the recognition of the lands of Knox, by a disposition and infeftment of fee by Colonel Barclay to his Lady, doth thereupon pursue declarator of recognition. The defender alleged, 1mo, That the recognition was not incurred by this infeftment, because it was never accepted, nor made use of by the defenders; 2do, Because it was only conditional, failing heirs of the disponer's body, and so was in effect but a substitution. The pursuer answered, That it was the deed of the vassal, infefting another in his ward-fee, without the superior's consent, which inferred recognition, and took place whether it was accepted or not. Neither is this a substitution, but a conditional disposition not granted in favour of the disponer and the heirs of his body, which failing, to his Lady, but principally to her, in case there were no heirs of his body. Both which points were decided in the case of Lady Carnegy and Cranburn, No 7. p. 13380. The Lords repelled the defences, and sustained the declarator. The defender further alleged, That these lands being taken by her husband to himself, and her in conjuct-fee, and they thereon infeft before this disposition inferring recognition, the same could not exclude her conjunct-fee, whereunto the superior did receive her, and which is equivalent to a confirmation.
The Lords found, That the defender's liferent, by her conjunct-fee before the disposition and infeftment inferring recognition stood valid, notwithstanding of the recognition.
