Scottish Court of Session Decisions

Subject_1 ESCHEAT.
Subject_2 SECT. II.

What falls under Single, what under Liferent Escheat.

Murray
v.
Donatar of Commissary of Dunkell's Escheat

Date: 23 March 1630
Case No. No 11.

A proprietor of lands continued in possession there-of for several years after his liferent escheat had fallen. It was found that the superior had only right to as much of the farms of the several year past since the rebel was year and day at the horn, as the land used to pay of rent, and that the rest of the crop pertained to the donatar of the single escheat, deducting expenses of labouring, &c.

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Mr Patrick Murray donatar to the Commissary of Dunkell his single escheat, after general declarator pursuing a special, wherein he craved the corn and increase thereof, growing upon the lands of, pertaining to the rebel yearly, of divers years, since his rebellion; and the donatar to the liferent of the same rebel, of these lands constitute by the Bishop of Dunkell, of whom the rebel held these lands, compearing, and alleging, that the farms which these lands were worth, and which they used to pay before the years libelled, during the which years libelled, the same were laboured by the rebel's self, ought to be defalked yearly off the crops, and ought to be adjudged to the superior, and to his donatar, and the King and his donatar had no right thereto; and that the same came not under the single escheat; and the King's donatar alleging, that the same fell under single escheat, and that the superior had no right for the by-gone years acclaimed, because the pursuit was for years of long time by-past, during the which space the superior made no use of his liferent, nor acclaimed the same, but suffered the rebel to continue in possesion, et facere fructus suos, whereby the King had right thereto, as single escheat, and not the superior, nor his donatar, who has only obtained the gift of liferent in January 1630, since his gift from the King, since which gift of liferent he may seek the liferent, and duties of these lands, for subsequent years, but not for the years by-past. The Lords found, that the superior and his donatar, had only right to as many of the farms the years libelled, since the rebel was year and day rebel, as the land was worth, and in use before to pay of farm, and that yearly, of all years as well by-gone as in time coming, and that the King's donatar had no right thereto, but only to the rest of the crop, and increase of the corns, each of these years, which increase pertained to him, and not to the superior's donatar; and it being alleged by the rebel, that the expenses debursed upon the labouring of the land, winning, shearing, and collecting of the corns, expended by the rebel thereon, and also the seed sown yearly upon the ground, ought sicklike to be deducted yearly off the increase acclaimed, and the pursuer alleging in the contrary; and sicklike the rebel alleging, that besides the foresaid defalcations, there ought also to be defalked off the first end of the crop and growth of the corns yearly, for the which he was pursued, the teinds, taxation due to the King for the lands, and the feu-duty paid to the superiors of these lands; and the donatar alleging, that these ought not to be defalked, The Lords found all the defalcations reasonable, and found that the same should be defalked to the donatar, out of the first end of the corns craved from this rebel, after probation, and in the end of the cause, except for the seed of the last year's increase, acclaimed by the donatar, which ought not to be deducted that year.

Act. Nicolson & Aiton. Alt. Stuart & Macgill. Clerk, Gibson, Fol. Dic. v. 1. p. 253. Durie, p. 513.