What incumbent on the liferenter and fiar as to repairs of the subjects. - Liferent of Furniture. - Bnuos on bank stock.
Wilkie v. Mr Henry Morison
1682.
January. Case No. No 36.
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A tenement in Edinburgh, out of which the heritor was obliged, by his contract of marriage, to infeft his spouse in an annualrent of 400 merks, having sunk so after the dissolution of the marriage, that it was demolished by order of the Magistrates, for fear of falling upon people; the relict pursued the heir to rebuild the tenement, and pay her the 400 merks yearly, since it was ruinous and uninhabited.
Answered; The defender was only obliged to warrant the right of annualrent against eviction; and there was no personal obligement in the contract to pay the 400 merks.
The Lords found the defender liable in the terms of the libel, and decerned him to rebuild the tenement, and to pay the bygone annuities since it became uninhabitable, in respect it was not demolished casu fortuito by fire or otherwise, but upon the account of the natural decay thereof.
Harcarse, (Liferents.) No 667. p. 190.*** Sir P. Home reports this case:
By contract of marriage betwixt——Morison and Agnes Wilkie his spouse, he being obliged to infeft her in an yearly annualrent of 400 merks, out of a tenement of land, during her lifetime; and the said Agnes having pursued Mr Harry Morison, as having represented the said——Morison his brother, upon the warrandice in the contract, for payment of her annuity yearly; alleged for the defender, That he could not be obliged to pay the annuity, because there was no personal obligement in the contract for payment thereof, but only to infeft her, which was accordingly done; and if this tenement has become ruinous, she ought to repair it herself. Answered, That, by the clause of warrandice in the contract, the defunct was obliged to warrant the annualrent land and tenement to be free and sure, for her liferent use, from all evictions and burdens that might befal thereto; and the tenement having become ruinous, and taken down by the Dean of Guild's order, the defender ought to be liable to the pursuer for her annuity, ay and while that tenement be rebuilt.—The Lords found the defender liable for the bygone annuity, and yearly in time coming, ay and while the tenement were rebuilt, that she might affect the same for her annuity.
