Vitious Intromission Purged by Confirmation, or by declarator of escheat.
Mr Walter Innes v. George Wilson
Date: 4 July 1665 Case No. No 202.
Vitious intromission elided, because the intromitter had warrant from the donatar of the defunct's escheat.
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Innes of Auchbuncart being pursued as heir to his father, upon all the passive titles, alleged, That his father was denounced rebel, and his escheat gifted, and the defender had right or warrant from the donatar before intenting of this cause. The pursuer answered, Non relevat, except the gift had been declared, and that the defender's intromission had been after declarator and the warrant, but the intromission being anterior cannot be purged ex post facto. The defender answered, That, as the confirmation of an executor excludes vitious intromission had before the confirmation ante motam litem; so the gift and warrant, though without declarator, purge anterior intromission ante motam litem;
Which the Lords found relevant.
Fol. Dic. v. 2. p. 46. Stair, v. 1. p. 294.*** Newbyth reports this case:
George Wilson pursues Mr Walter Innes for payment of 2000 merks, upon this passive title, that he had intromitted with his father's moveable heirship, which father was his debtor. It was answered by the defender, That his father died rebel, and at the horn, and his escheat gifted after his decease, and declared, so that the donatar had the only right to his moveables; and that any intromission he had, if he any had, could not infer gestionem pro hærede; because the defunct was denuded by the rebellion and gift, and the intromitters behoved to be countable to the donatar. It was replied, That the defender did intromit with the moveable heirship before the gift was declared. To which it was duplied, That albeit he had intromitted before the declarator, yet his intromission being after the gift, it can never infer gestionem; because, by the gift, jus est quæsitum to the donatar; so that, albeit the heir were entered, he could have no right to the moveable heirship, and so his intromitting therewith could not infer a gestion no more than in the case of an expired apprising, where the apparent heir intromits with his mails and duties of the lands apprised. This defender having right by assignation to his father's gift of escheat, —the Lords found the assignation to the subsequent gift of escheat sufficient to purge the defender's preceding intromission with his father's moveables.
