Subject_1 JUS SUPERVENIENS AUCTORI ACCRESCIT SUCCESSORI. Subject_2 SECT. II.
Where the Author is not liable in Warrandice.
James Skene
Date: 5 July 1611 Case No. No 9.
A Lady's liferent found not to accresce as jus superveniens to a donatar of escheat.
Click here to view a pdf copy of this documet : PDF Copy
James Skene, donatar to the Earl of Athole's escheat and liferent, seeking declarator thereof, and of the old Countess of Athole's liferent, to the which the said Earl had right, contending in the particular declarator for the mails and duties of diverse lands, against some gentlemen who were infeft, they excepted upon their heritable infeftments granted to them in anno 1584; which was taken away by reply, that the Countess was infeft in conjunct fee holden of the King in anno 1579. They duplied, That the Earl, who as heir to his father, being obliged to warrant them, had obtained the right of my Lady's liferent, and so jus superveniens emptori, behoved to accresce to them, and corroborate their right. To this was answered, That this right could not acresce to them, because before the Earl was found heir to his father, and so long before he could have been obliged to warrant them, his liferent and escheat had fallen in the King's hand; and, by that means, the liferent of the Countess falling to his Majesty's donatar, the Earl was denuded of that right before he was heir; and so, in respect of that mid-impediment which denuded the Earl of the right of the Countess her liferent, before her was that person who, as heir, might have been obliged to warrant those who were infeft before his father, he had not the benefit of the Countess' liferent to transfer in these vassals. In respect whereof, the Lords repelled the exception. In that same cause, Lethentie and Fardill alleging, That their infeftments were confirmed by the King, with a clause de novodamus, of all right the King had, by reason of forfeiture, recognition, escheat, liferent, &c.; and so having the right of the liferent of these lands disponed to them long before the donatar's gift, they needed no declarator; the Lords found that these clauses de novodomus might save from forfaufture or recognition, but would not comprehend the gift of escheat or liferent, or any such casuality of the said lands.
