In erections of benefices into temporalities, the titular demitted in the King's hands, upon which the erection followed. A posterior erection, after demission, was preferred to a prior without it.
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John Stewart son to the Earl of Bothwell, being abbot and commendator of Coldinghame, the Earl being forefaulted in Parliament, his son was dishabilitate to brook any lands, or goods in Scotland, whereby John fell from the right of provision of the abbacy; thereafter the King annexed the abbacy of Coldinghame, which was excepted from the general annexation 1587, to the Crown, excepting the teinds, and gave right of reversion, both of lands and teinds, to the Earl of Home, who gave a tack of the teinds of Kello and Cumerjame to the Laird of Wederburn. Thereafter John Stewart was, by act of Parliament restored, and the former act of dishabilitation rescinded, whereupon John Stewart demitted his temporal provision in the King's hands, and got it erected in an heritable right; he thereupon infeft Douglas of Ivleck for relief of sums. Sir Robert Sinclair's Lady, as heir to him, pursues for the teinds of Kello, and Cumerjame, upon the infeftment of relief. He had before obtained sentence for the years preceding John Stewart's death, during which his temporal provision stood, and as to which there was little controversy by the act of rehabilitation; but now the pursuer insisted for the years after John Stewart's death. It was alleged for the defender, first, that he has right by his tack unexpired, from the Earl of Home, who had the only right of fee, to the whole abbacy, by his infeftment granted to him by the King, long before the infeftment granted to John Stewart. It was answered, That the Earl's infeftment, proceeding upon John Stewart's dishabilitation, that being rescinded, and he rehabilitated, the Earl's infeftment fell in consequentiam, and John Stewart's right, on his own demission is the only right. It was answered for the defender, That the Earl of Home's right did not to proceed solely upon John Stewart's dishabilitation, but on the act of annexation following thereon, anno 1612, and John's rehabilitation could put him in no better condition than before the dishabilitation, and so could extend no further, but to the personal provision he then had. It was answered, that in that special act of annexation 1612, the spirituality or teind was excepted, as it was in the general act of annexation, and so no right granted by the King, till the teinds were demitted in his hand by the titular, could be respected, as being a non habente potestatem, at least not proceeding legitimo modo. It was answered, that the teinds, though not annexed, yet by the suppression of the Popish clergy, they returned to the Crown; for the general act of annexation, doth not give the King a right, but acknowledged his right by the ceasing of the ends for which these benefices were granted; but the annexation makes them indissolvable from the Crown, and indisposable by the King, and so the teinds being annexed, they cease not to belong to the King, but they are at his disposal, and he having disposed of them to the Earl of Home, before he disposed of them to John Stewart, the Earl's right is preferable, and so the defender's as his tacksman. It was answered, That all the erections of benefices in temporalities, were only upon demissions of the titulars; for though the Popish clergy was supprest, yet the King presented persons to the benefices, who had the titles of abbots, and commendators, and sat in Parliament, but had not the office, and in so far they were not supprest; and so the King could not dispose of the benefice, till it were demitted by the titular in his hands. It was answered, That the King could not dispose in prejudice of the titular incumbent; but that the titular, who was a naked liferenter, his demission should reach the fee, it was against reason; and John Stewart being dishabilitated, when the King granted the Earl of Home's right, so that there could be no demission, the King being in the commendator's place, and could not demit to himself, the dishabilitation at least was equivalent to a demission, though it had been necessary, as it was not; for albeit de facto, the King erected upon demissions, yet that he could not, after the abbot's death, have erected it, or provided another, or even during his life, reserving his temporal provision, there could be no doubt, else the demission of a liferenter or administrator could never give the King right of fee, which the resigner had, and here, the King had the right of fee, but not the resigner.
Yet the Lords found, that seeing all erections by custom proceeded on demissions, that the Earl of Home's not proceeding so, and John Stewart's proceeding upon his demission, was preferable, and therefore repelled the defence.
It was further alleged, That John Stewart had ratified the defender's tack. It was answered, That was but personal, and could not be relevant against the defender, being a singular successor. It was answered, That the pursuer's interest being but for relief, the defender could satisfy, and pay the interest, upon assignation, and so his singular title not being absolute, might be so purged.
