A wife being infeft in annuity out of a house, the Lords found the husband's heir liable to make it habitable, and personally liable for the annuity, till habitable.
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In an action pursued by Rachel Wilkie against Mr Henry Morison, as representing her husband, Henry Morison, for fulfilling of her contract of marriage, viz. for employing of 20,000 merks for her liferent use; and also, in regard there was an obligement in the said contract, for infefting of her in an annualrent of 400 merks, to be uplifted out of several tenements belonging to her husband in Edinburgh, which tenements became ruinous, and were taken down by the defender, by order from the Dean of Guild, she did conclude, that Mr Henry, as heir to her husband, ought to be liable to her for the said yearly annualrent. And it being alleged for the defender, That he, as heir to her husband, could not be liable personally for payment of the annualrent, in regard there was no personal obligement for payment in the contract, but allenarly personal obligement for infefting, and which was fulfilled, she being infeft accordingly:—The Lords found, that this being a contract of marriage, which was contractus maximæ bonæ fidei, the husband was liable to make the tenement habitable; and, therefore, the tenement having become ruinous by time, they found the defender, as heir to the husband, was liable for the bygone annualrent, and in time coming, till the tenement was rebuilt, and made so that she might have tenants thereto.
Fol. Dic. v. 2. p. 61. P. Falconer, No 15. p. 7.
*** Harcarse and Sir P. Home's reports of this case are No 36. p. 8274. voce Liferenter.
