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.

Stodhard
v.
Oswald

Date: 11 January 1698
Case No. No 41.

Found in conformity with No 32. p. 1300.

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Crocerig reported Marion Stodhard against Sir James Oswald of Fingleton. It was a competition betwixt a public infeftment on an adjudication, and an infeftment of annualrent, which Sir James contended was base, never clad with possession, and so could never have preference to him. Alleged, It was sufficiently clad with possession, in so far as Ninian Henderson her father-in-law, in her contract of marriage with his son, reserved his own liferent, so his possession was hers.—Answered, 1mo, Whatever a reserved liferent may operate inter extraneos, yet a reservation in favour of a father has never been sustained to clothe a base right granted to his son, so as to exclude lawful creditors. 2do, Wherever possession of one clothes the right of another, fictione juris, because I could not possess any other way but by them, the rights in that case must be of a homogeneous nature; but here they are wholly heterogeneous; for the reserved liferent is of the property, and the defender's right is an infeftment of annualrent.——The Lords preferred Sir James Oswald's public infeftment, and found the father's reserved liferent did not clothe the base right with possession.

The ground upon which the Lords decided for Sir James was, that the liferent was burdened with her annuity, and so she had access to poind the ground, and neglected it; otherwise, a right of property includes the annualrent, the first being the jus nobilius, as was found November 23. 1664, Nisbet contra Murray, No. 36. p. 1303.

Fol. Dic. v. 1. p. 90. Fountainhall, v. 1. p. 811.