Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR GEORGE AUCHINLECK OF BALMANNO.

Francis Stewart of Cunningham
v.
The Lady Sanderson

Date: 10 March 1631

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Umquhile Hercules Stewart had a tack of the teinds of Swinton set to him for the lifetimes of him and his spouse, and heirs to be gotten betwixt them, and, after their heirs' decease, for the space of nineteen years. Hercules Stewart was executed for treason; and Sir William Home gets his gift of forfaulture, and, by virtue thereof, comes in possession of the said teinds, and bruiks the same during his lifetime, because he married the wife of the said Hercules Stewart, who was conjunct liferenter of the said tack. His daughter, married to the Laird of Samwellstoune, being heir to Sir William, his father, pretends right to the said tack, as heir, and comes in the possession of the said teinds by virtue of the said tack, after her mother's decease, who outlived her father. Mr Robert Foulls takes the gift of the said William Home his escheat, and, by virtue of the said escheat, pretended right to the said tack during the years thereof to run. Mr Robert makes assignation of his right to Alexander Hamiltoune; and the said Alexander transferred the right thereof to Francis Stewart, son to John Stewart of Cunningham, who pursues the tenants of Swinton for the teinds 1629. The Lady Sanderson, daughter and heir to the said Sir William Home, compears, and alleges, That this tack cannot fall under the gift of her father's escheat, because he had right thereto by the forfaulture of umquhile Hercules Stewart; and the said forfaulture, being granted to him and his heirs, could not fall under escheat by rebellion of her father, donatar to the forfaultor. To the which it was answered, That the gift of forfaulture could not alter the nature of the tack, which, of its own nature, would fall under escheat; neither could the donatar of Hercules Stewart's forfaulture be in better case nor if Hercules Stewart had made an assignation or disposition to Sir William Home of the said tack; and there is no question but the assignation would have fallen under the assignee's escheat; ergo, [&c.] The Lords found the tack to fall under escheat, and that the gift of forfaulture could make no better right nor if the forfaulted person had made a disposition thereof.

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