Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Ker
v.
The Laird of Coldingknows

Date: 13 March 1628

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A declarator of liferent of some lands pertaining to Coldingknows, holden of the abbacy of Dryburgh, being sought by the Earl of Marr's donator, the abbacy being erected to the Earl of Marr, who thereby became Coldingknow's superior;—in this cause, John Boswell of Pittodrie compearing to exclude the donator, in respect he had comprised the same lands from Coldingknows, for debt owing to him, whereupon he was infeft by the king, who was Coldingknow's superior; for he found Coldingknows standing infeft, holden of the king, by virtue of the act of annexation, whereby he alleged he could not enter by another superior, than him of whom he found his debtor, from whom he comprised, standing infeft. This allegeance was repelled, and the liferent found to pertain to the donator constituted by the lord of erection, notwithstanding of the compriser's infeftment and his author's, holden of the king; for, by the erection which preceded both the comprising and the infeftment taken thereon, the king ceased to be superior, and the right of superiority belonged to the lord of erection, whereby the compriser, not being infeft by the right superior, it could not prejudge the true superior, viz. the Earl of Marr the lord of erection, nor his donator, in his vassal's liferent.

Act. Hart. Alt. Sandilands. Gibson, Clerk.

Vid. 24th July 1632, Ja. Reul.

Page 360.