Two gifts of non-entry were made by the Sovereign, one to to a stranger, and a posterior one to the vassal's heir himself, who accordingly was in possession. In a declarator at the instance of the prior donatar, the Lords preferred the second donatar, though his gift was never declared.
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Anent the action persewed be Robert Rollock of Fowlis against Thomas Dingwall of Killdrum, anent the gift of non-entries of certain lands pertaining in heritage to the defender, given be our Sovereign lady ; it was alleged be the persewar, That the said lands had been in non-entries be certain years in our Sovereign Lady's hands, whilk non-entries were disponit to the said persewar, who desirit the same to be decernit in non-entries conform to his gift. It was alleged be the said defendar, That the said lands pertened to him heretablie, and if so had been that the said lands had been in non-entries, as is lybellit, yet he had obtained ane gift of our Sovereign Lady of the non-entries of all the said lands, the space that the said lands had been in non-entries before the date of the said; gift, and ay and while the entrie of the righteous air thairto, and had been in possession of the said lands, be manuring, and uptaking the mails and duties of the same, long before the date of his gift, or the time of the same. It was answered be the persewar, That his gift was made to him two years before the date of the defender's gift; and alleged, that donatio principis transfert dominium incontinent after the date of the said gift, without any other and real possession, as was alleged could not serve without there had been ane decreet of non-entries decerned, be the whilk he came in possession. It was alleged be the said defendar, That albeit the pursewar's gift was befoir his, notwithstanding it was never intimated to him, nor summons raisit thairupon, sua that the said defender was not obliged to know the same; also, he needit no decreet to decern the said lands in non-entries in his favours, because the heritable right of the same lands pertenit to himself, and he could not call himself to that effect; but the real possession of the same was enough to him, conform to his gift, notwithstanding the naked gift was given to the said persewar before his, without real possession following thereupon; whilk allegeance for the defender was admittit be the Lords, and obtained an absolvitor of the said non-entries be decreet of the Lords, notwithstanding the allegeance of the persewar.
Fol, Dic. v. 1. p. 349. Maitland, 173.*** Balfour reports the same case:
The heritabill possessour of landis being in possessioun thairof, and obtenand the gift of non-entres, aucht and sould be preferrit to all uther persounis obtenand ane uther gift of non-entres of the samin landis, ather after his gift or befoir the samin, gif the time of the obtaining of his gift he was in bona fide, and na intimatioun of ane priour gift maid to him, or ony summoundis raisit aganis him conform thairto.
