A husband's jus mariti of lands, belonging to his wife which falls under single escheat, was found to belong to the wife's superior, and not to the King.
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Archibald Hamilton of Bairfutes, as having by gift of my Lord of Lothian, the liferent of sik lands as Agnes Mauchan held of his Lordship, fallen in his hands by the rebellion of Harry Drummond, and his remaining year and day at the horn, pursued for declarator thereof. Compeared Mr John Kerr, donatar to the said Harry's escheat, given to him by the King's Majesty, and being admitted for his interest, alleged, That no declarator could be granted to the pursuer upon the Earl of Lothian's gift, because nothing could fall to the Earl, but the liferent of his vassal who was not at the horn, and the rebellion of her husband could not make her liferent fall, because he was not vassal to the Earl; and if she was either divorced, or her husband died before her, neither his disposition of her liferent nor his rebellion could any longer prejudge her of her liferent, but the right thereof would return to herself; and, if her husband outlived her, the right of her liferent lands would expire with herself, and so neither her liferent, nor her husband's liferent, could fall to the Earl of Lothian her superior, by her husband's rebellion, she not being at the horn; but whatever fell by her husband's horning, behoved to pertain to the King and his donatar. It was answered, That nothing could fall to the King's donatar, because he could not pretend right to their liferent, because neither her husband nor herself held these lands of the King, as the superior thereof, neither could the King's donatar have right to this liferent by single escheat, because it fell not under single escheat. The matter being reasoned among the Lords it was considered, that he who was year and day at the horn lost both escheat and liferent; and therefore it was no reason that he should bruik that which might fall either under escheat or liferent, and next, because the liferent controverted, was not holden of the King, his donatar could not have right to it as liferent, neither could he have right to it as single escheat, because it was not moveable, and therefore they found the exception not competent to the King's donatar. In respect whereof, sustained the pursuer's summons.
