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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Anent Liferentrixes
1673.
November.
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About this time it was queried, If a woman, liferentrix provided to so many bolls or chalders of victual, or infeft in an annuity or annualrent furth of lands for her liferent use, will be liable proportionally, and pro rata of what she possesses, to the public burdens, with the fiar.† Either it is declared she shall have right to such an annuity free of all incumbrances, or that her jointure be worth so many chalders of victual, or it is due merely by a personal obligement to pay as well infeft as not infeft; and in either of thir three cases it is thought she will have right to her full liferent, without allowance of any defalcation for burdens: but if her liferent right be constituted by infeftment, and she in possession, she will in that case be liable for her proportion of the public burdens. I said, in this second member of the distinction, that she must be in possession, else it is thought she will not be obliged to acknowledge these debita ex fundo provenientia, et quæ rem afficiunt et sequuntur. And thus inclines the act 3. made on the 10th of December, 1646; and it is affirmed, the Lords have so decided, first between the Lady Rossyth and her son, and then between the Lady Cassills and the Earl of Roxburgh—Vide 1. 27. p. 3. D. de Usufructu. Vide jurisconsultissimum Joannem Vandum, lib. 2. quæs. 22. See act 20, in 1663, and some observations, alibi, anent tercers undergoing public burdens. See 23d February, 1681, Lady Aberlady.
And, really, it cannot be thought rational, that the fiar shall bear the burdens imposed intuitu of land, whereof he is not in possession, but debarred by liferenters. Natural equity provides, ut eum sequantur incommoda qui habet commoda; they who reap the emolument ought not to grudge onus ei annexum, 1.10. D. de Regulis Juris. What if the heir have little or no profit? sure it is hard to require brick
† If she be infeft, some determine she is liable; otherwise, is not. Onus temporariæ indictionis ad fructuarium pertinet, 1. 28. D. de Usu et Usufructu Legato. See February, 1680, Absents from the Host, p. 27, Mr De Ferriere cited.
of him without furnishing straw, unless express paction be in the contrary. See the Lady Rossyth's case.
