Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

The Creditors of James Masson
v.
Lord Tarphichan

Date: 19 January 1669

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Several Englishmen, creditors to James Masson, who lately broke, being infeft in several annualrents, out of lands of his, pursue poinding of the ground. Compearance is made for the Lord Tarphichan, superior, and his donatar, to the liferent-escheat of James Masson; who alleged, That James Masson being rebel year and day before these infeftments of annualrent, the ground could not be adjudged, but the profits behoved to belong to the superior and his donatar, It was answered, That the superior or donatar had no interest by the rebellion of James Masson, because, before the rebellion, James Masson was denuded in favours of his son, and he received as vassal; so that the vassal for the time, not having fallen in rebellion, the superior can have no liferent-escheat. The superior answered, That the creditors of Masson having been once vassal, and, as vassal, constituting their annualrents, they could not object upon the right of his son, unless they had derived light from his son. 2dly. The superior is also creditor, and hath reduced the son's right as fraudulent, in prejudice of him, a lawful creditor. It was answered, That the superior's right, as a creditor upon the reduction, doth not simply annul the son's fee: neither doth it at all restore the father again, because, it being but a reduction to a special effect, viz. that the creditor may affect the lands, by apprizing upon his debt, anterior to the son's infeftment,—notwithstanding of his infeftment, the son's fee stands, but burdened with that apprising: so that upon neither ground the superior can have the right of a liferent-escheat of him who once was his vassal but was denuded before rebellion; and which is most competent to the pursuers, as well as if the superior had been denuded, and another superior infeft; if he or his donatar had been pursuing for a liferent, any person infeft in the land might well allege that he had no interest as superior, being denuded. The Lords found, That, in neither case, the superior or donatar could have interest in the liferent escheat.

Vol. I, Page 584.