Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. V.
Possession upon a right good ex facie, although liable to objections;
Cunninghame v. Stuart
Date: 19 February 1635 Case No. No 18.
In a special declarator of a rebel's liferent escheat against an intromitter with his rents, by right granted after rebellion, the plea of bona fide consumption was sustained till citation.
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One Cunninghame, made donatar by George Rome, to the liferent escheat of Robert Neilson, of the lands of———, which were holden of the said George Rome, after general declarator, recovered against the said Robert Neilson; in a special declarator he pursues one Stuart, intromitter with the duties and profits of the saids lands, for refunding of the same to the donatar, of all years since the said rebel was year and day at the horn, viz. continually since the year 1615. And the defender alleged, that he was infeft in the said lands by the said rebel, and by virtue thereof uplifted the profits of the lands bona fide, which being now consumed, and he never interrupted by any special citation, he ought not to be compelled to refund the same; and the donatar opponing the horning, which preceded the defender's infeftment, and which put the rebel and all the lieges in mala fide to do any deed thereafter in prejudice of the superior, for the casuality of the liferent; especially also there being a general declarator recovered against the rebel's self, which declares the right in effect to pertain to the superior, since the time that he was year and day rebel: The Lords found the allegeance relevant to exclude this pursuit, for all the bygone years duties acclaimed, which the Lords found to have been bona fide uplifted and consumed by the defender, who was never interrupted by the superior, nor his donatar, in the possession of the same; for albeit the defender's infeftment was made by the rebel to him, after he was rebel, yet the same was sufficient for the saids bygones, intromitted with by virtue thereof, wherein he was not interrupted, albeit it would not defend for the time to come, since the time of his special citation in this special declarator; but found the said infeftment sufficient to liberate him for all the years before this his special citation, in this particular declarator, and that he was not interrupted, neither by the process, nor decreet of general declarator, whereto he was not specially called, and so no respect was had thereto, and the same was also only lately recovered in anno 1634. Therefore he was assoilzied from the bygones; for he could not be in any worse case than a tenant who paid his farms yearly to his master, albeit rebel, yet not being specially intimated to him, that payment would ever have freed him from the donatar for bygones. Item, The Lords found, that the liferent pertained to the same pursuer's author, albeit the rebel was not rebel a year since he acquired the right of the superiority; for the Lord Sanquhar was superior the time when the rebel was at the horn year and day; and before he sold the lands to Rome, the rebel was relaxed: Whereupon it was alleged, that Rome could not have right to the liferent of the vassal, who, since his right, was not rebel, being relaxed, as said is, before his right: Which allegeance was repelled, seeing the vassal was rebel a year unrelaxed, which made his liferent fall to his superior; and seeing the Lord Sanquhar was superior when it fell, and that he sold all his right which he had to the lands to Rome, and, had not gifted that casuality before to another; they found that it pertained to Rome, notwithstanding that the vassal was relaxed before the right was acquired by him, seeing the year was expired before he was relaxed. see Implied Assignation.
Act. ——.Alt. Gilmore.Clerk, Scot.
Fol. Dic. v. 1. p. 107. Durie, p. 756.
