A donatar of liferent not liable for diligence, but for actual intromissions, except in so far as he excludes others.
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In a competition between the donatars and creditors of Mr James Winram, Matthew Crawford being the first donatar, Mr Laurence Charters the second, for whose children it was alleged, That they ought to be preferred, because the first donatar had given back-bond, restricting the gift to his own satisfaction; ita est, he was satisfied by his intromission, at least by what he ought to have intromitted with, and so having entered in possession of the rebel's tenements in Edinburgh, he was liable for the rents thereof, and also for the rents of some lands in the country, whereof he had entered in possession;—It was answered, That donatars being assignees by the first gift, have absolute right, except in so far as it is limited by their back-bond, which is only as to intromission, but obliges them to no diligence.—It was replied for the second donatar, That escheats do not simply exclude creditors, even without back-bond, and therefore, if a posterior donatar or creditor, arresting or doing other diligence, insist to affect the rebel's estate, the donatar cannot exclude them, and suffer the rebel to possess, but must either intromit, or suffer them to intromit, and so excluding them, is liable for intromission and omission; and so the first donatar entering in possession, could not relinquish that possession to the rebel, but must be accountable therefor, nam pro possessore habetur qui dolo desiit possidere. —It was duplied for the first donatar, That he was content to account for the tenements in Edinburgh, but for the lands in the country he was not obliged to account, because he had excluded no creditor, nor had obtained any sentence against the tenants, but they had voluntarily paid him some terms, which did not oblige him to insist for the rest.
The Lords found the donatar liable for no diligence, except in so far as he excluded other creditors or donatars, or dolose deserted the possession; but found the voluntary payment by the tenants not to make him liable for subsequent terms.
Fol. Dic. v. 1. p. 239. Stair, v. 2. p. 593.
1680. January 14.
*** Fountainhall reports the same case:
The Lords found a donatar to an escheat, having no competitors, was not liable for diligence, but where there were two or three donatars, he was either obliged to exact diligence, or to give the second donatar possession; even as in a competition among comprisers, where the party holds both as to intromission and setting of lands; and a donatar's diligence against tenants is poinding and caption, and charging is not enough.
