Found in conformity to Elshiells against Elshiells, No 16. p. 13070.
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Lord Philiphaugh reported Dame Anna Lumisden, Lady Valleyfield, contra Robertson of Gladney, and the Creditors of that estate. The Lady, in her contract of marriage with Preston of Valleyfield, is provided and infeft in an annualrent of 2000 merks out of that estate; but the clause does not express whether this annualrent, or liferent annuity, should be free of cess and other public burdens, or not. The Lady pursuing a poinding of the ground, it was Objected, She must bear a proportional share of the cess and other public burdens with the rest of the estate, there being no provision in the contract, specially exeeming her, as uses to be when the same is intended by the parties-contractors; especially considering these annualrents are grievous burdens, and have been the occasion of sinking many estates in Scotland, and, by the 3d act, Parliament 1646, such liferents were made subject to public burdens; and though that Parliament and its acts be rescinded by the great act rescissory in 1661, yet the equity of it was so strong, that, by the act of convention in 1667, it is revived, and that clause is carried along in all the subsequent acts of supply in 1672, 1678,1681,1685, &c. In the next place, the Lords have determined accordingly, on the 18th of June 1663, Fleming, No 35. p. 8273.; 22d January 1668, Douglas, No 9. p. 13066.; 22d February 1670, the Countess of Cassilis, No 5. p. 2257.; and 22d July 1691, Ramsay, (see Appendix.); where such annualrents are made liable to public burdens. Answered for the Lady, That it has been always looked upon as undoubted, that these annualrents shall be free, unless there be a clause adjected declaring them liable, which all provident parties do. And the act of the convention 1667 may impose cess, but had no power to make binding law; and the decisions have been in the case of liferent-localities, which it is not denied but they are liable, and not in the case of annuities as this is; and there is no more reason to make these liable to public burdens, than the annualrents of personal securities by bonds. 2do, The husband's heir is bound in payment to her as well not infeft as infeft; and, by a clause of absolute warrandice, is obliged to free her of all perils, burdens, and inconveniencies whatsoever, and the word burdens must comprehend cess. Replied, That the decisions are plain, burdening all annualrents, unless the granter be expressly obliged to relieve them; and the clause of warrandice is in the common style, and can only exeem from teind and feu duties, but not from cess. The Lords found the Lady's liferent-annuity must bear a share of the public burdens as it shall be proportioned with the rest of the barony, out of which it is upliftable, Some thought this decision might take place where the liferent was exorbitant, and the apparent heir had little; but the Lords made it general, where it is not declared free.
Fol. Dic. v. 2. p. 291. Fountainhall, v. 2. p, 246.
