What falls under Single, what under Liferent Escheat.
L Wedderburn v. Stewart of Coldingham, and Others
Date: 4 February 1634 Case No. No 14.
Actions tor annulling feus, for not payment of feu-duty, are not competent to be pursued by the donatar of the superior's liferent.
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John Stewart of Coldingham, and Robert Douglas, who was donatar to John Stewart's liferent, and which was declared, and whereby the said donatar had also right to the liferent of the lands of ——, which pertained in feu to the L. Wedderburn, holden by him in feu of Coldingham, through Wedderburn's rebellion year and day, whereby the liferent of these lands fell to John Stewart, and consequently to the donatar of the said John Stewart's liferent, as a casuality accrescing to the superior; and consequently coming under his liferent, and so pertaining to the donatar; the said superior, and the said donatar recover decreet, reducing and annulling the said L. of Wedderburn his feu of the said lands, upon the act of Parliament, for not payment of the feu-duty; which decreet being desired to be reduced at the instance of the L. Wedderburn, upon this reason, That no such sentence could be sought, nor no such action pursued, at the instance of John Stewart, because the same was only competent by virtue of the alleged right of superiority of the said lands; and it was of verity, that before that pursuit he ceased to be his superior, in so far as he had resigned all his right of the superiority long before that pursuit, in his Majesty's hands, to remain with the King perpetually in all time to come; and so that pursuit being an accident, befalling to the superior, and he not being superior, the decreet recovered by him ought to fall. And the King's Treasurer and Advocate compeared, and concurred with the pursuer, and insisted on this reason; and the defender alleging, That this reason was not competent to the party, and the King had no interest to pursue or concur, because the King pursued not this cause principally, and it could not be sustained by the concourse of his officers; attour, the King had a benefit by the reduction of the feu, for thereby the property of the lands did belong to him, by John Stewart's resignation; whereas if the feu stood, and the decreet reducing the same should fall, the King would get nothing but the feu-duty allenarly; which allegeance was repelled, and the King's concourse sustained, and the reason found relevant to reduce that decreet, obtained by the superior, after he was denuded of his superiority, in favour of the King, as said is. And the defender further alleging, That this decreet could not be reduced, albeit John Stewart were excluded, seeing it was recovered at the instance of the donatar to John Stewart's liferent, to whom this casuality of his vassal's liferent fell, and which accresced to the donatar, who had obtained declarator upon that liferent of the vassal's, upon a pursuit moved at his instance therefor, before John Stewart's resignation of the superiority; so that the donatar had competent action to pursue that action for annulling of the vassal's feu, sicklike as the superior's self might have done before the resignation; for his liferent being gifted and declared before the resignation, it gave the donatar the same right as if the superior had disponed that casuality to him before resignation, quo casu the subsequent resignation, nor no deed done thereafter by the superior, could prejudge the donatar; and therefore the decreet ought to stand at his instance, at least the feu should fall or sleep, during the vassal's lifetime. ——The Lords repelled this exception, and sustained the foresaid reason also, at the King's instance, as said is, against this donatar, for reducing of this decreet controverted, in so far as it was obtained at this donatar's instance; for the Lords found, That actions for annulling of feus, for not payment of the feu-duty, were not proper to be pursued by the donatar of the superior's liferent; these actions being of that kind, quæ sapiunt naturam rerum hæreditariarum, which were not competent to donatars of liferents, whose rights being temporary, could not produce such actions against the vassal, to take away his property; neither was it respected, that the donatar restricted the sentence to have effect only during the vassal's lifetime; seeing the feu could not fall upon that reason of not payment of the feu-duty for that space, and thereafter revive again; the cause being perpetual, and might be only urged by him, who was capable to bruik the property, as the donatar was not, who having, by virtue of the right of liferent, good right to the mails and duties of the lands, or to remove the possessors therefrom, could not conveniently seek this declarator of nullity to endure during his right only, as he retrenched it, seeing he might attain to the effect of that by virtue of his said right, by which he had the sole power of the land, and the whole commodities thereof, during that space; and it was not well compatible to seek the full profits of the lands, as he had done, by recovering of sentences therefor, and also to seek the feu to be annulled, for not payment of the feu-duties; which feu-duties the rebel could not pay, being excluded from the lands by the donatar's right, and which were so in effect, rather liable to be paid by the donatar's self, who either might recover possession of the lands by law, or if the rebel did possess, might comprise the property therefor; and therefore the Lords found, That the donatar could not in law seek any such action of nullity, for ubi datur et competit ordinarium remedium ex jure as here, non recurritur ad extraordinarium.
Act. Advocatus et Nicolson.Alt. Stuart et Craig.Clerk, Gibson.
Fol. Dic. v. 1. p. 254. Durie, p. 700.
