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In a double poinding, raised by the tenant of Etherny, betwixt Mr William Beaton, donatar to the liferent escheat of Rig of Etherny, and an infeftment of annualrent, holden of Etherny, and clad with possession before the rebellion, granted to Scot of Lethem, it was alleged for the donatar, That by the liferent escheat of Etherny, the fee of his lands returning to his superior, he or his donatar behoved to enjoy the same, free of any burden induced by the vassal, unless consented to by the superior, or approven by law. It was answered, That albeit it be true, that where fees return to the superior ex natura feudi, either by ward, non-entry, or recognition, they return as little burdened as when they were granted; but it is not so in the case of liferent escheat, which does not arise from the nature of the feudal contract, but from statute or custom, upon disobedience to law, or civil rebellion, which is not a feudal delinquence; and therefore, the superior has only the benefit of the vassal's liferent, as it is the time of the denunciation; and any right constitute before, whether infeftment or tack, is not excluded: And though subaltern infeftments, being base, if they be not clad with possession before denunciation, exclude not the superior, because possession is requisite to accomplish their right; yet, such as are perfected by infeftment before the rebellion are not prejudged thereby.
The Lords sustained the base infeftment, and found the rebellion of the superior not to exclude base infeftments, or tacks granted by him, and complete by possession, before the rebellion.
Fol. Dic. v. 1. p. 256. Stair, v. 2. p. 51.
*** The like was decided, 23d February 1671, Lord Justice Clerk against Fairholm, No 14. p. 2766.
