Objections, &c. competent to some and not to others.
Hamilton v. Tenants
Date: 28 March 1637 Case No. No 65.
Nullity of a gift of escheat, as taken for the rebel's behoof, sustained not only in favour of the one at whose instance he was denounced, but in favour of his other creditors.
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John Hamilton apothecary, being confirmed executor creditor to umquhile John Glendinning of Drumrash, pursues the Tenants of the said Drumrash's lands, for payment of their duties to him of certain years, resting unpaid before Drumrash's decease; wherein it being alleged for William Glendinning of Lagan, That he had intromitted with these duties by tollerance of John Glendinning of Perlan, who was donatar to the escheat and liferent of the said John Glendinning of Drumrash, and who had obtained general declarator thereon; and it being replied, That that gift of escheat must be presumed to be simulate, in respect of the act of Parliament 1592, whereby all such gifts are declared simulate and null, where the rebel remains in possession of the lands, and goods, &c., and true it is, that this rebel remained in possession of his lands and goods peaceably, and continually all the years after the gift and declarator, by the space of diverse years, and ay and while this year controverted, and of which year the duties are yet in the tenants hands unuplifted; and the defender duplied, That this answer of simulation cannot be found well qualified by this presumption alleged, of the rebel's remaining in possession, without some further qualification of a positive act, which may infer simulation; for although the donatar suffer the rebel to possess, that is not enough to make his gift null, where the same is not truly taken to the rebel's behoof; but notwithstanding of that bruicking by the rebel, the donatar may, when he pleases, claim the benefit of his gift; attour this act of Parliament cannot be constructed to any other sense; as also the same expressly appoints that nullity to be in favours of the creditor, at whose instance the rebel was denounced, and cannot militate for every creditor, as the words of the act in themselves proport, which cannot be extended. The Lords found this allegeance not relevant, in respect of the answer; and found the same reply was competent to be alleged for all creditors, as well as for him, at whose instance the debtor was denounced, and found that there was no necessity to qualify any other circumstance of simulation, except the said retention of possession. See Presumption.
Act. ———.Alt. Gilmore.Clerk, Scot.
Fol. Dic. v. 1. p. 521. Durie, p. 843.
