Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
James Gordon of Daach v. The Tenants of Westerton
Date: 9 July 1701
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James Gordon of Daach, as donatar to the liferent-escheat of John Anderson of Westerton, constituted by Duff of Braco, superior thereof, pursues a general and special declarator against the tenants; in which process Major Alexander Anderson, brother to Westerton, the rebel, craves to be preferred, as donatar constituted to his brother's liferent-escheat by the King's Exchequer: and, for instructing that the lands held of the King, he produced a seasine following on a resignation made by Arthur Forbes of Balveny, then superior, in Westerton's favour, to be holden of the King, and whereupon Westerton was infeft as the King's vassal in 1687.
Objected,—That the Major could never compete on the said gift nor infeftment; not on the gift, for he had not so much as raised a declarator; not on the infeftment, for it was a non habente potestatem, Arthur Forbes being long before that denuded by adjudications, whereunto Braco had right; so he was no more superior.
Answered,—The Major was seven years and more in possession, by virtue of a gift, and likewise of an infeftment holden of the King, of whom all lands were presumed to hold, unless their holding of a subject were instructed; and he was not obliged hoc loco to debate the validity of his right, but had the benefit of a possessory judgment till Braco's donatar raised a reduction, calling the King's officers of state and his author Arthur Forbes's heirs, and then he would debate his rights.
The Lords thought superiors might be thus prejudged, if parties, on lame pretences, should apply to the Exchequer, and take forth gifts of liferent-escheats, as if they were the King's vassals, and then tell the true superiors, You must call the officers of state, and reduce: and therefore found the Major bound to debate the validity of his right in this same process. And, in regard Braco's anterior right was instructed, they allowed the Major to reply, that either his adjudications were extinct by payment or intromission, or that the legal was yet current, and they still redeemable; and appointed the Ordinary to take them in summarily in this same process.
