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Scottish Court of Session Decisions >>
Lady Craig, and Greenhead Her Husband, v Lord Luire. [1664] Mor 10620 (7 December 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor2510620-006.html Cite as:
[1664] Mor 10620
What title requisite. - What time requisite. - Connection of possession.
Lady Craig, and Greenhead Her Husband, v. Lord Luire
Date: 7 December 1664 Case No. No 6.
A possessory judgment not competent to a wife by her husband's possession against another deriving right from him.
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The Lady Craig being infeft in liferent, pursues her tenants. Compearance is made for the Lord Luire, who apprised the lands of her husband, and alleges that he ought to be preferred, because he stands publicly infeft, and any right the Lady has is but base, holden of her husband; and before she attained possession he was publicly infeft. It was answered for the Lady, That her husband's possession is her possession, and so her infeftment was clad with possession from the date thereof. It was answered, That that holds only in the case of an infeftment to a wife upon her contract of marriage; but this was but an additional gratuitous infeftment stante matrimonio, she being competently provided before by her contract.
In which case, such provisions cannot prejudge lawful creditors, neither can the husband's possession give the benefit of a possessory judgment to the wife, unless she had possessed seven years after his death.
The Lords found, That such infeftments as these, being gratuitous and voluntary, could not be prejudicial to the husband's creditors, nor give the wife a possessory judgment; and the case here being with a creditor of the husband, they did not proceed further to consider, and determine if the husband's possession in such a case would not validate the base right as to any acquired right thereafter.
