Scottish Court of Session Decisions

Subject_1 CONFIRMATION.
Subject_2 SECT. III.

Confirmation of the Radical Right, whether it Validates all the Branches.

L Craigivar and his Donatar
v.
Aikenhead

Date: 4 December 1635
Case No. No 10.

Confirmation of a charter, granted to a son to be holden of the superior, was found a virtual confirmation of a liferent reserved to the father in the charter; and the father's liferent escheat was found to belong to the subject superior, and not to the King's donatar, who contended to be preferred, as if the father's liferent was a personal right, and held of no superior.

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The Laird of Craigivar and his donatar craving declarator upon the liferent of Mr Adam Bothwell, of the lands of Glencorss, whereof Craigivar, as succeeding in the Lord of Salton's right, of whom these lands were holden, was superior; in which process, Mr James Aikenhead, as donatar to the King of the same liferent, seeking special declarator thereon, compeared, and opponed against this declarator of Craigivar's, who claimed the same as pertaining to him as superior, and that the King had no right thereto, by reason that Mr John Abernethy was vassal of these lands to the Lord Salton, and proprietor thereof, which Mr John had disponed the same to umquhile Adam Bothwell, father to the said Mr Adam, and to the said Mr Adam heritably, by two infeftments, one to be holden of the said Mr. John, and the other of his superior, (which infeftment granted to be holden of the superior, was not confirmed,) by the which charter subscribed by the said Mr John, granted to be holden of Mr John's superior, (viz. the Lord Salton, in whose place Craigivar hath come,) the said Craigivar and his donatar alleged, That the said Mr John's right to the casuality of liferent, was altogether excluded, and did cease, seeing he was denuded of all right which he had, both to the property and superiority of these lands; likeas the said Adam, and Mr Adam his son, who had acquired the said right, as said is, disponed, the lands heritably to Adam Bothwell, son to the said Mr Adam, to be holden of the superior, with reservation of the said Adam, and his son Mr Adam, father to the youngest Adam, their liferent, which charter was confirmed by Craigivar; within three days, after the said Mr Adam, whose liferent was reserved, was put to the horn, and so long before he was year and day rebel; by the which confirmation, bearing the said reservation, and by the remaining of the liferenter year and day thereafter rebel, the liferent of these lands so reserved pertained to him as superior; and Mr James Aikenhead, donatar to the King of the said liferent, alleging, That the same pertained to the King's donatar, and could not pertain to any other superior, because Mr Adam was never vassal to Craigivar, neither by any original right nor resignation, nor by confirmation; and that confirmation of the right granted by Mr Adam to his son, confirmed by Craigivar, bearing the reservation of Mr Adam's liferent, cannot be sustained to make Mr Adam his vassal, except he had been his vassal before that charter confirmed, which cannot be shown; seeing by the contrary he was vassal only to the said Mr John Abernethy, and held of him; and whatever reservation of his liferent was made in the charter granted to his son, heritably to be holden of the superior, and which was confirmed by the superior, that cannot make him his superior; seeing his liferent was not constituted by that reservation, but was lawful and sufficient of before; and that reservation was only an exception annexed to his son's fee, with which it was affected, and transmits no right of superiority over his liferent, but only to the property given to the son, to be holden of that superior. And albeit it might be alleged that his liferent would not fall to Mr John Abernethy, his proper superior, in respect that he might be alleged to be denuded of all right competent to him by the charter, granted to be holden of Mr John's superior; yet the same accresceth to the King, seeing there was no other superior ratione coronæ, whereby he is justly reputed superior to all, when another cannot be shown.——The Lords repelled this allegeance, proponed for the King's donatar, and found the right of this liferent pertained to Craigivarr whom they found to be superior to this rebel, by this reservation contained in the charter granted by the father to his son, to be holden of the superior, and confirmed by him; which reservation so made, and charter which bears the same, being confirmed, they sustained as sufficient to mike him his vassal, although the rebel had right to the liferent of before, and found the superior's right not prejudged, albeit before his confirmation the liferenter was rebel some days before, and that thereby no right was acquired to the King, the superior having confirmed long before the year expired, and within a month after the date of the charter granted to the son, and so the superior was preferred to the King, and the sole reservation found enough to make him vassal.

Act. Advocatus & Nicolson. Alt. Stuart & Gibson. Clerk, Scot. Fol. Dic. v. 1. p. 193. Durie, p. 782.