In a reduction of a gift of liferent-escheat, it was found no simulation that the rebel was suffered to continue to possess a house, the rents of which fell under the escheat.
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Mary and Sophia Sheirers being infeft upon a disposition from Andrew Sheirer, their brother, in some houses lying in Hackerston's wynd, pursue the tenants for mails and duties, and to make the rents forthcoming upon these arrestments. Compearance is made for Sir Robert Murray, in whose name James Dalgleish, a creditor of Sheirers, had taken the gift of his single and liferent escheat; and craved to be preferred, on this ground, that their brother was registered at the horn before he granted them the disposition and infeftment founded on; after which he could do no voluntary deed to the prejudice of the fisk and creditor who had denounced, though it was in implement of their bond of provision. Whereupon they repeated a reduction of the gift, on this ground, that it must be presumed simulate and collusive, and for the rebel the common debtor's behoof, in so far as the donatar suffered him to continue in the quiet and peaceable possession of a house, the rent whereof fell under his escheat, and made a considerable part thereof, and had not removed him now by the space of five or six years. Answered, He had completed his gift, by obtaining decreets both of general and special declarator, and put himself in possession of all the lands, except one little house the debtor possessed by bangistry, and was dwelling in it in his father's lifetime, and against whom he was in cursu diligentiæ, but was hindered by these parties competing their opposition, and laying on termly arrestments; and whatever such an imaginary simulation and connivance might operate against a single escheat, in detaining of moveables; yet it signified nothing in the possession of lands, the possession whereof we daily see bankrupts detain in spite of their creditors.—The Lords found there was a difference betwixt a rebel's sitting still in a house after a gift and declarator, and his lifting rents from other tenants, where he was not in the natural possession himself, which the donatar ought to interrupt; and therefore found no simulation in this case, and assoilzied from the reduction, and decerned in the mails and duties, preferring the donatar.
Fol. Dic. v. 2. p. 158. Fountainhall, v. 2. p. 370.
