Scottish Court of Session Decisions

Subject_1 ESCHEAT.
Subject_2 SECT. II.

What falls under Single, what under Liferent Escheat.

James Rule
v.
L Billie.

Date: 24 July 1632
Case No. No 13.

Found in conformity with No 6. p. 3616.

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One James Rule being donatar to the liferent of the Laird of Billie, and pursuing declarator thereon, the lands being holden of the Abbey of Coldingham, and the gift of liferent flowing from William Douglas his heir, who had the right of superiority competent to John Stewart, to whom the Abbacy of Coldingham was erected, in this process, James Renton, who had acquired the right of the lands controverted from the L. Billie, by virtue of a comprising deduced thereon by a lawful creditor, who had disponed the said comprising to him, and by virtue whereof he had been also diverse years in possession; all this time the L. Billie being a free liege, not at the horn by the space of four years after the comprising; in respect whereof he alleged, That the donatar nor superior had no right to the liferent of these lands, being comprised, as said is, before the rebellion from the vassal, and the compriser in possession, and which comprising must be also effectual to seclude the donatar and superior from the liferent, as if the vassal had by contract disponed his liferent, he then being at no horn, quo casu the subsequent rebellion of the vassal could never have prejudged the acquirer of the liferent in his right thereof, albeit no sasine, nor other deed had been done by the superior, to acknowledge the same.—The Lords repelled this allegeance, and found the liferent of the vassal's lands pertained to the superior, notwithstanding that the same were comprised, and possessed by the compriser before the vassal was rebel; in respect that the compriser was not infeft nor seased by the superior in the lands, nor had the compriser charged the pursuer to receive him upon the comprising, without which the Lords found, that the vassal becoming rebel, albeit after the comprising, forfaulted his liferent to the superior, wherein the preceding comprising did not prejudge him; for not the comprising, but sasine, makes the real right of lands, to casu even as if there had been two comprisers, the first infeft, albeit last comprising, would have been preferred to the first compriser. And the Lords found, That the Lord of erection, his submitting of his superiorities to the King, prejudges him not of his casualties of that erection, but that the same pertained to him, he not being satisfied therefor by the King, which is the condition of the submission. It was also found, That Billie's liferent escheat of his lands, holden of John Stewart, fell under John Stewart's liferent escheat, albeit the time when John Stewart was rebel year and day, his vassal was not then rebel, but was rebel thereafter; also a compriser infeft before Billie's annual rebellion by the King, Billie's self being standing infeft by the King, by the act of annexation, prejudged not John Stewart, to whom that benefice was erected before that comprising, and infeftment of the comprisers thereon, seeing the King by that erection ceased to be superior, and John Stewart became superior, of whom he should have taken the infeftment, for by that erection, the annexation of that benefice was rescinded.

Act. Stuart et Craig. Alt. Nicolson. Clerk, Gibson. Fol. Dic. v. 1. p. 253. Dnrie, p. 649.