Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Mr William Beaton, Advocate, v. Scot
Date: 16 January 1672
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It was about this time controverted whether or not a base infeftment, clad with possession for years or terms before the rebellion of the granter, will exclude the donatar to his escheat. It seemed to many as juris indubitati that it would; yet the Lords demurred thereon, and ordained practiques to be adduced hinc inde; (because, forsooth, my Lord Stair in his book prefers the donatar very dogmatically and magisterially.) And it makes me call to mind John Scot's case against one Hog, on the 15th of January 1666, wherein the Lords found a base infeftment of warrandice not clad with possession save what he had of the principal lands, preferable to a posterior public infeftment in the same warrandice lands, clad with thirty or forty years possession.
Advocates' MS. No. 292, § 2. folio 123.
1672. January 16.—In the competition supra at No. 292, betwixt a base infeftment clad with possession before the denunciation, and the donatar to the said superior, granter of the infeftment, his escheat: the Lords at last found the base infeftment preferable, and that in respect of a practique following on a full debate in the time of the English.
This was well decided, in my judgment, else where a nobleman or gentleman having vassals holding of him, unconfirmed by the immediate superior, went to the horn, and his liferent is gifted, the mails and duties of the whole vassals' lands, though alienated, if they be not confirmed, should belong to the donatar. See the informations of this beside me. Vide infra, No. 413, [Tenants of Bathgate against Crawfurd, July 1673.] Vide Dury, 19th March 1633. Renton cont. Blacader. Vide Hadinton, at the 9th of December 1609, Spotswood and the L. of Westforton.
