Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Cocheane of Babachlaw v. Janet Savage
1676.
June.
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[See the Case above.]
In the action mentioned, supra, at No. 413, in July, 1673, between the tenants of Bathgate, Janet Savage and Andrew Crawfurd, donatar to the laird of Bathgate's escheat and liferent, the Lords there found Savage her base infeftment (though taken posterior to the denunciation of the horning,) preferable to the gift of escheat; both because it was within four days after the denunciation, and so far within year and day, as also because it depended upon a precept of seasine contained in an heritable bond long prior to the charge of horning. (Vide infra, November, 1676, Mr William Weir, No. 509.) Of this decreet, Cochrane of Babachlaw, assignee by Crawfurd the donatar, raises reduction and suspension, upon this reason, that the decreet was wrongously and surreptitiously extracted, against a stop by deliverance upon a bill referring the matter of new to my Lord Strathuird, who heard the clause formerly; the bill craved a farther hearing upon that ground, set down ubi supra, that the donatar by a decreet in foro contentioso, in anno 1667, was already preferred to this annualrenter, and to one Clerkson, who was in a stronger case than this Savage, in so far as he was infeft base before the denunciation, et si vinco vincentem te, tunc te vinco. See M'Keinzie's Observations on the act 1621, p. 165. Now this allegeance was proponed, discussed, and repelled in Savage her decreet of preference, in 1673, only it made no mention of the bill and stop and second reference. Craigie, before whom the case fell, was much scandalized; his titubancy was, how to reconcile two of the Lords their decreets in foro in terminis interfering and clashing, one of them behoved to be unjust, and so condemn his Majesty's letter of protection to the Lords, in May, 1674, discharging the quarrelling of any of the sentences of the Session upon iniquity. He takes it to the Lords' answer, which of the two contrary decreets they would acknowledge and legitimate. They adhere to the first decreet, and prefer the donatar of the liferent escheat not only to Savage, (who was infeft in an annualrent after denunciation, but the heritable bond was prior,) but even to Clerkson, or any who were basely infeft before the denunciation. The reason of which decision lies in this,—that it were unreasonable to defraud and exclude the King, or respective superiors, of the liferent and escheat of their vassals, falling and incurred through their contumacy, and lying year and day unrelaxed at the horn; the creditors might have relaxed him within the year, and that had saved them, by private clandestine deeds, which they, as superiors, had never owned nor acknowledged, by adhibiting their consent, either in accepting a resignation, or granting a charter of confirmation; without which deeds and consent of his own, the jus quæsitum to him by the rebellion could not be stopped. And yet thir casualties of superiority, being odious and unfavourable in law, are not to be extended beyond their due limits, and lawful and honest creditors are not to be wronged thereby; only they should know the condition and capacity of him with whom they contract: l.19. D de Regulis Juris. Vide supra, numerum 446, [Earl of Aboyne, 28th February, 1674;] item, numerum 445, anent quarrelling sentences of the Lords as unjust, in Almond and Dumfermling's case. Item, numeros 122, [Earl of Argile against Cambell, 2d February, 1671,] and 156, [Hamilton against Bell, 25th February, 1671.] And upon thir grounds the Lords found the donatar preferable; unless we would either say, the superior had consented, acknowledged, and confirmed Savage's infeftment before the gift, or that we had made it public by possession any time before the expiring of year and day. And when I offered to prove possession of that term's annualrent preceding the elapsing of year and day, Craigie forced us to allege, it was either legal possession, by obtaining a decreet of poinding of the ground against the tenants within the year; or by natural possession, receiving it from the tenants, labourers of the ground, before the year expired: and that it was not sufficient to say, made public by civil possession, of receiving the annualrent from the heritor, since that respected not jus fundi, and such payment might be ascribed to the personal obligation. Vide supra, numero 297, [16th January, 1672;] item, the case of Hew Sinclar's Creditors, at the foresaid 413th Number.
On the 8th of June, 1677, the Lords having advised the probation led by witnesses and discharges, to prove the possession within the year currente rebellione, they found the same not proven; and so preferred the donatar to Savage, the annualrenter: only, since the maills and duties were not proven against the tenants, they could not decern against them till they were proven.
