Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
John Jones, Procurator-Fiscal of Glasgow, v. - Wood, Relict of Bailie Fairie
Date: 3 February 1680
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In the action betwixt John Jones, Procurator-Fiscal of Glasgow, and——— Wood, relict of Bailie Fairie there; she alleged, Though she had no right nor assignation to the reversion, yet she, as liferentrix of the tenement, might redeem Jones's infeftment of annualrent, and so remove impediments that hindered her from possessing.
Answered,— Esto she did redeem, she must ascribe her possession, primo loco, to the extinguishing of this infeftment of annualrent; for, if she should bruik for her liferent, and suffer this annualrent to run up unpaid, if she lived eight or nine years, it would exhaust and absorb the whole value of the tenement; and so would recur against the fee which the said Jones had acquired from the heir, and so, in process of time, would render his fee unprofitable; which iniquity she ought not to be permitted to do.
This case being reported on the 5th of Feb. 1680, the Lords found, that Jones's infeftment of annualrent was preferable to her liferent, and that, if she redeemed, she behoved to ascribe her possession primo loco to the said annualrent; and, if the rent of the tenement exceeded the said annualrent, then to her liferent pro reliquo: and found his infeftment of annualrent preferable to her, both quoad the annualrent and the stock or principal sum.
