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Robert Miln, as donatar to a liferent escheat, having obtained a general declarator, insists now in a special declarator for mails and duties. It is alleged for Clarkson, That the pursuer has no right to the mails and duties, because he stands infeft before the rebellion. It was answered, Any infeftment Clarkson has, is but a base infeftment, never clad with possession till the rebellion, and year and day was run, and so is null as to the superior or his donatar. It was answered, That the base infeftment is valid in itself, and albeit by the act of Parliament 1540, a posterior public infeftment for causes onerous, be preferable, yet that cannot be extended to the right of a liferent escheat, or to a donatar. It was answered, That by the course of rebellion year and day, the superior's infeftment revives as to the property, during the rebel's liferent, and cannot but be in as good condition as any posterior public infeftment; and it was so decided, Lady Renton contra Blackader, No 61. p. 3662.
The Lords found that the base infeftment, though prior to the denunciation, not having attained possession within year and day, could not exclude the liferent escheat.
