Scottish Court of Session Decisions

Subject_1 ESCHEAT.
Subject_2 SECT. II.

What falls under Single, what under Liferent Escheat.

Douglas
v.
L Wedderburn.

Date: 8 March 1628
Case No. No 10.

Found in conformity with No. 6. p. 3616. The sub-vassal's liferent escheat first falling, makes a part of the casualty of the vassal's single escheat, but falling after the vassal's liferent-escheat, makes a part of the casualty of liferent-escheat.

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In a declarator of L. Wedderburn's liferent escheat of certain lands holden by him of John Stuart, having right to the benefice of Coldinghame, and thereby fallen in his hands as superior, and which was pursued against Wedderburn by William Douglas donatar to John Stuart's liferent escheat, and who had obtained declarator upon John Stuart's liferent, it being contraverted by the L. Wedderburn compearing, and alleging that his liferent, which had fallen since John Stuart his superior's liferent fell, and since it was gifted and declared at William Douglas's instance, and which was not then extant, to be comprehended within that gift of John Stuart's liferent, then granted and disponed, and so which he alleged could not pertain to the pursuer, whose gift of the superior's liferent could not extend to a casuality, falling forth to the superior thereafter, and which casuality, he alleged, could not be disponed by any gift of the superior's liferent escheat, but was proper only to be disponed by a new gift of the superior's simple escheat, as a provenient casuality, which could no otherwise be gifted but by a simple escheat, and could noways pertain to the donatar of his liferent. This allegeance was repelled, and this casuality of the sub-vassal's liferent was found, might be comprehended under the gift of the superior's liferent escheat, albeit the time of the gift it was not then extant; for the King having disponed John Stuart's liferent, and all which should befal to him, as that gift did extend to any feu, or other duties paid to him for these lands, whereof Wedderburn's liferent sasine fell, so behoved it to extend to a greater profit, which might befal to him thereafter, out of the same lands, by his vassal's fault; for that casuality of the sub-vassal's liferent was not a new purchase by the superior, whose liferent was acquired by the donatar, without any inherent casuality of the superiority, whereto the gift did extend, as effectually as if the superior had disponed to the donatar before his rebellion his liferent of all these lands whereof he was superior, quo casu as that disposition would extend to the casuality of the sub-vassal's liferent, even so the gift of his liferent did extend thereto; and it was acknowledged by the Lords, if it had been extant at the time of the gifting of John Stuart's liferent escheat, that the King might have gifted this casuality of the sub vassal's liferent, by the gift of the superior's simple escheat; but not the less, that if the King had not gifted it so, which he might effectually have done if he pleased, but had gifted it under the gift of liferent of the superior's escheat, that the gift of liferent might have also effectually been extended to it, the same being a proper casuality of the lands, and the liferent of the lands, or what is due out of the lands, being proper to be disponed by a liferent gift, likeas here there was no other donatar to the simple escheat. See Disclamation.

Fol. Dic. v. 1. p. 253. Durie. p. 357. *** Kerse reports the same case.

Found that the liferent of a sub-vassal pertains to the donatar of the superior's liferent, notwithstanding that the sub-vassal was not at the horn the time of the gift granted to the donatar of the superior's liferent, but was put to the horn two years thereafter.

Kerse, MS. p. 221. *** Spottiswood reports the same case.

John Stewart of Coldingham being year and day at the horn, his liferent escheat was gifted by the King to William Douglas. Two or three years after the gift, the Laird of Wedderburn (who held some lands of John Stuart) was year and day at the horn likewise; whereupon William Douglas donator to John Stuart's liferent escheat, pursued a general declarator of Wedderburn's liferent escheat of the lands holden by him of John Stuart. Alleged, That it could not fall under the compass of the superior's liferent escheat, but under the single, in respect it was a casuality fallen to the superior long after the falling of his own liferent, and so behoved to be gifted of new by the King. This matter was long reasoned, and many inconveniences represented, whereby both the King and all other superiors might be prejudged, if by the gifting of one's liferent, all casualties that should fall to the rebel afterwards were also disponed; for thereby both the King was prejudged of his composition for a new gift, and the superior also once being year and day rebel, albeit he were relaxed afterwards, yet he should never have any benefit by any casuality that might befal through the rebellion of his vassal (sicklike of ward and non-entry) but it should accresce to the donatar of his liferent: Nevertheless, The Lords repelled the exception, in respect there was not another donatar of his liferent; which if there had been, I think he would have been preferred.

The same found betwixt James Rule and James Renton, the question being about the Laird of Billie's escheat, who was a vassal also of Coldingham, 26th July 163. See No 13. p. 3624.

Spottiswood, (Escheat) p. 102.

*** The same case is also reported by Auchinleck, voce Disclamation, No 3. p. 3556.