Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. VI.

A Wife's right of Liferent, held Base of her Husband, is supported by the Possession of the Husband.

Campbell
v.
Lady Kilchattan

Date: 15 January 1663
Case No. No 35.

A wife's infeftment for security of her jointure, cannot be clothed with possession during her husband's life; therefore the husband's possession is understood to be her possession, and her infeftment accordingly preferable according to its date. See No 1. p. 1259.

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Major William Campbell being infeft in an annualrent out of certain lands belonging to the deceased Ninian Stewart of Kilchattan, pursues a poinding of the ground, and obtains decreet, which is suspended against him on the one part, and the Lady, liferentrix of Kilchattan on the other part.—It was alleged for the relict, That she is infeft in the property upon her contract of marriage, whereby she was provided to the lands by old Kilchattan her father-in-law, and her husband; to whom and her, the father-in-law was obliged to grant infeftment in conjunct-fee, and she is accordingly infeft.—It was answered, That any infeftment that she and her husband had, it was only base, to be holden of the superior not confirmed; whereas the charger was infeft and in possession, not only by uplifting his annualrent, but by a decreet for poinding the ground, which could not be prejudged by a not confirmed infeftment, being null before the confirmation.—It was replied, That the charger could not obtrude the nullity of her husband's and her infeftment, seeing her husband was his own author.—Duplied, That the charger had obtained a confirmation of her husband's right, ad hunc effectum allenarly, to make his infeftment of annualrent valid.—Triplied, That the confirmation of her husband's infeftment did confirm her's also, notwithstanding of any such clause.—Quadruplied, That the confirmation being past only to secure the charger, and on his own expences, actus agentis non operatur ultra ejus intentionem, just as if there had been a procuratory of resignation in favour of both husband and wife, and the resignation had been made only in favour of the husband and not the wife.—Answered, If it had been so, the infeftment would have operated in favour of the wife, as was found in the case betwixt Lochinvar and the relict of the Laird of Blairquhan, wherein resignation being made and past, and infeftment thereupon in favour of Blairquhan and his Lady, nevertheless sasine was only given to the Laird, and not to the Lady; the Lords nevertheless found that the sasine was profitable to the Lady. See Husband and Wife.

The Lords found the relict's infeftment sufficient against this charger. And withall, they considered what was not alleged for her, viz. That in favorem of a relict's infeftment upon her contract of marriage, for her liferent right, a base infeftment to be holden of the superior not confirmed, was sufficient against a singular successor, as has been formerly decided.

Fol. Dic. v. 1. p. 89. Gilmour, No 61. p. 43.