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In an action pursued Muire contra Ahannay and the E. of Galloway, wherein a donatar to a rebel's liferent escheat, pursuing for the mails and duties of the rebel's lands, after the expiring of year and day, and the defender defending himself with an infeftment of the lands granted to him of the same by the rebel, the Lords found, that that infeftment, albeit it was replied and granted by the defender to be true, that the same was made after that the rebel was year and day at the horn, whereby the right of his liferent of these lands was acquired to the King, and so that no deed could be done in the King's prejudice, which might make the liferent unprofitable to him; yet that the same was sufficient; likeas the Lords sustained the same to liberate the defender, who had acquired the infeftment, for all the duties acclaimed of these lands, of all years preceding the intenting of any declarator, upon that rebellion; and that the defender was in bona fide, to intromit with the same duties of the saids preceding years; and therefore he could not be compelled to refund the same, seeing they were fructus bona fide et percepti et consumpti, and so could not be repetit from him, and therefore assoilzied him therefrom.
In this process it was found, that the liferent of him who was apparent heir to a defunct, who died infeft in lands, fell to the superior, by the apparent heir's rebellion year and day, albeit that the apparent heir was not infeft in the lands.
In this process also, a tack being quarrelled as null, because it was conferred to a time of entry unlawful, and so behoved to be respected as wanting an entry, in which case it would be null, by reason the words of the tack bore, ‘That the tacksman's entry is, and shall be at a year therein exprest,’ which year was bye-past many years before the date of the tack, the tack being set long after that year, to the which this entry was conferred; which allegeance was repelled, and the tack sustained, in respect it was but the incongruity, or informality in the writing thereof, in these words, ‘ is and shall be,’ respecting the future time, whereas it should have said, the entry was at that time, respecting, the preterite; for the which, the Lords found no cause in substance to annul the tack, or which might derogate therefrom. See Litigious. See Tack.
Act. Hope & Nicolson, jun.Alt. Nicolson, sen.Clerk, Gibson.
Fol. Dic. v. 1. p. 254. Durie, p. 137.
