Donatar of Sir William Stuart's Liferent v. His Lady's Tenants
Date: 24 July 1624 Case No. No 3.
A rebel died after the term of payment of farms of his Lady's jointure, by a former husband. The tenants paid the lady thereafter, who was infeft. This was found bona fide payment as to them, when pursued at the instance of a donatar to his escheat.
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Sir William Stuart, constable of Dumbarton, being rebel, the donatar to his escheat pursues the tenants of certain lands, whereof his wife was liferenter, by a conjunct-fee granted to her by the L. of Lochnoreis, her first husband, for payment of the farms of the lands of that year wherein the said Sir William died, seeing he died not while after the term of payment were both by past of that year acclaimed, and the same were claimed by the said donatar, as pertaining to the rebel jure mariti, and, being owing the time of his rebellion, to him. The defenders compearing, alleged, That they had made payment to the lady his spouse, who was clad with the principal right, and that the rebel her husband hath only right as husband, who being dead before payment made, they behoved to be reputed in bona fide to have paid the same to their mistress, and ought not to pay the same again to any pretending right from the husband, or by his rebellion, which they could not know, that rebellion being unknown to them; and there being eight or nine years past sincesyne, during the which time there was never pursuit nor action, or any question moved for the said farms. This exception was found relevant to liberate the tenants, and action was reserved to the donatar against the Lady, who had received payment of the farms; but the tenants always, were ordained to furnish, probation to the donatar, which might verify lawfully her receipt of the same, whenever the donatar should pursue her therefor.
Act. Burnet.Alt. ——.Clerk, Gibson.
Fol. Dic. v. 1. p. 111. Durie, p. 141.
