Competition Creditors with the Donatar of Forfeiture.
Colonel Main v. Lady Earlston
1684.
March. Case No. No 33.
A lady was infeft in a liferent. Her husband disponed the fee, reserving this liferent. The disposition was confirmed. The reservation of the liferent was held to have been thereby confirmed likewise, so as to secure it against a gift of forfeiture.
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In an action of mails and duties at the instance of Colonel Main, as donatar of Earlston's forfeiture, compearance was made for the Lady Earlston, who alleged, That she was infeft base in a jointure by her father-in-law, who died ad fidem et pacem, and her right was made public by her husband's possession of the fee. 2. Her husband having disponed the fee in favours of their son, reserving her liferent, and the disposition being confirmed by the King, the defender's liferent is thereby confirmed.
Answered for the pursuer; Base rights made public by possession, do not secure against forfeiture, unless they be confirmed by his Majesty. 2. The King's confirmation of the disposition to the son, cannot be extended to the mother's liferent, which is neither disponed therein, nor flows from the disponer, but is only reserved as a burden upon the son's right; especially considering, that husband and son are both forfeited rebels, and the confirmation returns again to the King by the forfeiture.
Replied; The confirmation of the disposition being indefinite, it must be understood to confirm all that was confirmable; and the reservation of the liferent in the disposition of the fee may be called in some manner the institution of a liferent by the husband; and all this was long before the crime of rebellion was committed either by the father or son.
‘The Lords found the second alleageance and reply relevant to defend the liferent against the gift of forfeiture.’
The cause being again called, it was alleged for the donatar; That in charters of confirmation in Exchequer, they do not consider clauses relative to the procuratory, but only the subject expressly confirmed; and although the charter bears, ‘under the provisions expressed in the procuratory,’ yet these provisions being restrictions of the disposition, and the warrandice thereof, are not considered to be confirmed; and suppose the charter had expressly narrated the Lady's liferent, that ought not to be looked on as confirmed, seeing the subject of the confirmation is only what is disponed, and what is reserved is not disponed, and consequently not confirmed; nor would such a confirmation of ward (lands) import a confirmation of a liferent so reserved.
Answered; That reservations in charters, either express or relative to procuratories, ought, and are presumed to be considered, and fall under the confirmation if not reserved from it.
The Lords adhered to their former interlocutor; because a liferent may be also constituted by reservation, though it would be otherwise in the case of a reserved right of fee.
Upon a new calling, it being alleged for the donatar, That the clause runs thus, ‘under the provisions, conditions, &c. in the procuratory in favours of’ William Gordon, who was the disponer, and did not bear these words, ‘in favours of the Lady;’ so that the reservation was taxative to the husband,
‘The Lords again adhered to their former interlocutor.’
