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In the competition for the sum in Ruthven of Gairden's wadset on the Earls of Home and Annandale their estates, betwixt the Creditors and donatars of Mr Clerk's escheat, on the one hand, and James Gordon of Seaton as donatar to Ruthven's escheat; the Lords found the disposition made of this wadset to James Clerk by Ruthven of Gairden, when he was minor, with the consent of his uncle as curator, was not null in law, though there was no decretum judicis interposed, but was only reducible upon minority and lesion; for though a pupil can alienate nothing without the authority of a Judge, yet it was no legal nullity, where a minor either wanting curators, or with their consent, where he has them, alienates heritage without the warrant and cognition of a Judge; but the deed subsists, if not revoked or quarrelled intra quadriennium utile. 2d February 1630, Hamilton contra Sharp, voce Minor ; 13th December 1666, Thomson contra Stevenson, Ibidem. The Lords also found, That the donatar to Gairden's escheat was preferable to a base infeftment granted by the rebel to Clerk prior to the denunciation, unless the said base infeftment was either confirmed or clad with possession before the annual rebellion existed; and which agrees with the current of former decisions, 19th March 1633, Renton contra Blackader, No 61. p. 3662.; and 21st February 1667, Milne contra Clarkson, No 64. p. 3664. And possession in cursu rebellionis will do the turn to prefer the base infeftment to the donatar of the liferent escheat. But now, since the act of Parliament 1693, taking away the distinction betwixt public and private infeftments, any infeftment prior to the denunciation will now seclude the superior and his casuality.
Fol. Dic. v. 1. p. 256. Fountainhall, v. 2. p. 71.
