The donatar to a rebel's liferent escheat, is preferable to a base infeftment granted prior to denunciation, unless either confirmed or clothed with possession before the annual rebellion existed.
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One being donatar to the liferent of the L. of Wedderburn, in the lands of ——, holden of John Stuart, and pursuing special declarator thereon; the L. Blaikader, who was one of the defenders called, alleging, That he was infeft in these lands by the L. of Wedderburn, before he was rebel, for most onerous causes, so that he had right to the mails and duties thereof, and not the donatar, by virtue of any subsequent rebellion after his right, the Lords repelled this allegeance, and found, that the donatar had right thereto, in respect the infeftment excepted upon, was confessed to be a base infeftment, and not clothed with possession, and therefore could not be valid to seclude the donatar, no more than the base infeftment foresaid would have excluded a posterior public right, acquired after the base, being clothed with possession: But this instance of the public right, clad with possession, meets not this case, where none of the parties are in possession, but are presently claiming the same; and if, in the instance adduced, the prior base right, and the posterior public, were contending for the possession, the same scruple would remain.
Act. Stuart.Alt. Nicolson & Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 256. Durie, p. 680.
