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.

James Reid
v.
Countess of Dundee

Date: 21 February 1672
Case No. No 38.

A wife's base right, flowing from her husband, was held to be good by the husband's possession, although not the natural possession; which was enjoyed for the time by his mother, a liferenter.

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Mr James Reid being infeft in an annualrent by the Earl of Dundee, pursues a poinding of the ground; compearance is made for the Countess of Dundee, who produces her infeftment by the Earl her husband, of the lands in question in liferent, and that in lieu and place of certain other lands, whereunto she was provided by her contract of marriage, and which she renounced at her husband's desire; and bearing, because the Earl's mother was infeft in the same lands in liferent, that in place thereof the Countess should be infeft in other lands, during his mother's liferent, and thereupon craves preference.—It was answered, That the Lady's infeftment is base, not clad with possession, whereas the pursuer's infeftment is public; and albeit the husband's possession is ordinarily holden to be the wife's possession, yet that is only as to infeftments for implement of contracts of marriage in favorem matrimonii, but not as to any other infeftments. Ita est, This infeftment is not for implement of the contract of marriage, but in place of the lands so provided and renounced. 2do, The act of Parliament anent public and private infeftments, allows only base infeftments clad with possession; and though custom hath extended that statute, that although the wife possess not, yet the husband's possession shall be repute hers, which is introduced by custom in favour of wives that cannot otherwise possess; yet custom hath never extended it further than to the natural possession of the husband; and here the husband's mother being in natural possession, the husband cannot be said to possess, unless he did either possess by himself, or by his tenants, or chamberlains; but a possession derived from his father or himself, to a wadsetter or liferenter, cannot be said to be his possession; these possessing proprio jure, and not being in his power; and though a liferenter's possession might be interprete to be a civil possession for the fiar, yet that is but fictione juris, and there cannot concur two fictions in the same point, otherwise there could be no end; for if the mother had given a distinct right, and that party had been in possession, that party's possession would be the mother's possession, and the mother's possession would be the son's possession, and the son's possession, as husband, would be this Lady's possession; and albeit if the old Lady's right had been constitute by a reservation in this Lady's right, the old Lady's possession might be interprete as flowing from this Lady's right; yet here it is not constitute by reservation, but is only related as being already constitute.—It was replied for the Lady, That by the constant custom the husband's possession is understood to be the wife's possession, to all effects and purposes; neither is there any distinction, what kind of possession it be; and albeit by the act of Parliament, base and private infeftments, without possession, be postponed to posterior public infeftments, yet that is expressed in regard of the fraudulency and latency thereof; but where there is no fraud, but an onerous cause, the least possession is sufficient, as the possession of warrandice lands is sufficient by possessing the principal lands; and infeftment of annualrent is valid against public infeftments before the term at which the annualrent is payable, because the annualrent cannot be accounted latent while it cannot act; so this Lady's infeftment being not only for an onerous cause, viz. in lieu of an equivalent infeftment renounced; but also being most favourable, being a wife's provision, which creditors have good reason to inquire after; and cannot be said to be latent, though there were no contract of marriage, it being both ordinary and due by husbands who have ought to provide their wives; and this being in place of the provision by the contract of marriage, hath the same privilege and favour therewith; but whatsoever might have been pretended against base infeftments, as latent and fraudulent, before the act of Parliament anent the registration of sasines, this infeftment being granted after that act, no creditors can pretend that it was latent, or they deceived thereby.

The Lords sustained the liferenter's infeftment, and preferred the same to the creditors posterior public infeftment.

Fol. Dic. v. 1. p. 90. Stair, v. 2. p. 74. *** Gosford reports the same case:

Mr James Reid, as being infeft in an annualrent of lands in the parish of Innerkeithing, did pursue a poinding of the ground against the tenants, wherein compearance was made for the Countess, as liferenter of the said lands, who alleged, That albeit her infeftment was posterior, yet it being given her in remuneration of the lands provided to her by contract or marriage, which she had renounced, and she being in possession by virtue thereof, in so far as her husband being Earl of Dundee, and heritor, did possess the same by his mother, who was liferenter of the same lands, and uplifted the mails and duties during her lifetime.—It was replied, That albeit the proprietor of lands, out of which a liferent is given, is able by the liferenter's possession, to defend against prescription, or to give the benefit of a possessory judgment to the heritor; yet a third party getting a right from the heritor, who is not in natural possession, but only fictione juris, by the liferenter's possession, as said is, the third party's right can never be said to be clad with possession by such a reservation, out of the author's right; which were of a most dangerous consequence; seeing those who bona fide acquired a right to lands, can never be in security, if such private rights, not clad with natural possession, but by subtile reservation, should be sustained.——The Lords did, notwithstanding, prefer the Countess, albeit the lands in question were only given in remuneration of those contained in her contract of marriage, upon this special ground, That her infeftment did bear, that the lands being affected with the old Lady's liferent, therefore, during her lifetime, she was provided to the like rent, out of the barony of Glassary, which did import a reservation of the old Lady's liferent; and so her possession was the Countess's possession, and made her right public. That by act of Parliament, ordaining all sasines to be put in the public register, creditors who contracted with the husband, might easily know what infeftments of liferents were given to their wives, either of lands contained in the contract of marriage, or given in remuneration.

Gosford, MS. No 479. p. 249. *** Dirleton reports the same case:

An infeftment granted to the Lady Dundee by her husband, in recompence of a former provision she had by her contract of marriage, and which she had renounced, was questioned by a creditor, who also was infeft; upon that ground, that the Lady's right was base; and though rights granted to wives, upon their contracts of marriage, or after marriage when they have no provision, or in recompence of former provisions, are sustained albeit base, because the husband's possession is the wife's possession; yet the right in question ought not to be sustained upon that ground; in respect the husband was not in natural possession, the lands being liferented by his mother; and, by the act of Parliament, the possession whereupon base rights are sustained, is only to be understood of natural possession:——The Lords preferred the Lady, and repelled the said defence, upon these considerations, that infeftments given to wives, in the cases above-mentioned, are construed to be public, and are not presumed to be fraudulent: And wives are not in the condition of other creditors who may perfect and make their rights public; whereas wives can do nothing themselves; and it is to be presumed that wives are provided by their husbands; so that those who are to acquire rights from them, ought to enquire if their wives be infeft, especially seeing, since the act of Parliament 1617, anent registration of sasines, they may easily know the same.

Act. Cunninghame, &c For the Lady, Lockhart & Lermonth. Dirleton, No 161. p. 65.