Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. VII.

Whether a Father's possession validates a base right in favour of his Son.

Bruce
v.
Durie

Date: 26 June 1634
Case No. No 42.

A father infeft his son of a first marriage, by base right, reserving his own liferent. He afterwards infeft his second wife by public right, for her future maintenance. She had no conventional provision. She was preferred.

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One Durie of Craigluskart having infeft his second wife, called Margaret Bruce, in some lands in liferent after his decease, by a public right confirmed, in the which lands he had long before infeft his son, begotten of a prior marriage, in fee, by a base right, reserving his own liferent: After the husband's decease, at the next term, the relict pursues the tenants for the mails and duties of the land; the son compearing, and by virtue of his prior right claiming preference: The Lords repelled this allegeance, and preferred the relict, whose right being public, and the son's right being but base, albeit prior, yet not being clothed with possession, nor no deed done, nor no diligence to apprehend possession, it was not found to be of force, to hinder the effect of the posterior public right, granted by the husband to the wife, for her liferent and sustentation; albeit the son alleged, That he could not have done diligence to get possession, before his father's decease, who was liferenter, who died but at the term immediately before this pursuit, in which pursuit, he now timeously compeared to claim the benefit of his right; which was not respected but repelled.

July 1.—In this pursuit, mentioned before upon the 26th of June 1634, for mails and duties of the lands of Badrig, at the instance of Margaret Bruce, relict of umquhile George Durie, who was infeft therein in liferent by her said umquhile husband, holden of the superior; and James Durie son to the said umquhile George of a prior marriage, compearing and alleging, that she had ho right thereto, but he ought to be answered of the duties of the said lands; because the said umquhile George, his father, long before the pursuer's right, had infeft his umquhile mother in liferent, and umquhile John Durie, eldest son procreate betwixt them, in fee in these lands, to which John is heir, reserving also the father's liferent, whereby he has the better right; and albeit it was but a base infeftment, yet seeing the father's possession and the mother's was continued, so long as they lived together, whose liferent is also constitute by that same infeftment of fee, their possession must be repute his: Likeas, this pursuer's right is but a poor and naked donation by the husband to the second wife, having no preceding necessary cause, which might have produced that effect; and albeit public, yet being posterior to his, & sine causa, and never clad with possession year and day, as is required by the act of Parliament, Ja. 5. anno 1540; therefore he ought to be preferred. This allegeance was repelled, and the pursuer's right, albeit posterior, was preferred, seeing the husband had provided her to no other means whereby to live, he being obliged by her contract of marriage, to as great provision as the avail of these lands yearly extended to; which not being done, the Lords sustained this infeftment, seeing she had nothing for her provision but the same: And it was not respected that her infeftment had no relation of being made for implement of her contract of marriage, nor made mention thereof.

Act. Bruce. Alt. Nicolson. Clerk, Hay. Fol. Dic. v. 1. p. 90. Durie, p. 721, 722.