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Lord Royston reported the Earl of Glasgow, Carmichael of Boninton, and other Creditors of Murray of Spot, against Lord Alexander Hay of Lawfield The said Lord Alexander having purchased the lands of Spot by a minute of sale; but Murray the proprietor being year and day at the horn prior to the minute, and his liferent escheat gifted, the Creditors having right to the gift by backbond competing with the purchaser, he craved preference and deduction out of the price for 16,000 merks, contained in an heritable bond granted by Spot to Mrs Patricia Ruthven, his sister-in-law, whereon she was infeft, and has disponed it to Lord Alexander. Alleged for the Creditors in the backbond, That the said interest ought to be repelled, because though the obligement to infeft in that annualrent was prior to the denunciation, yet the sasine taken thereon was long after the year and day of the denunciation and charge of horning; and Sir George Mackenzie, book 2. tit. 5. lays it down for a principle, that no voluntary infeftment can compete with the donatar of escheat, unless it was expede within the year and day of the denunciation running, whereas this was after. Answered for Lord Alexander, That though the infeftment be posterior to the expiration of the year and day of the rebellion, yet it can never be construed a voluntary deed of the vassal's to prejudge the superior of his liferent escheat, because the vassal was bound ab ante to grant the infeftment, the heritable bond being prior to the denunciation; and the sasine being taken before the gift, it is sufficient to prefer the annualrenter; the completing the right being no voluntary but a necessary deed, to which he could have been compelled by law; and the rebellion never having been a constitute right till it be gifted and declared; and before that time the Lords had preferred both arresters and assignees to the donatar, as was found, 10th November 1710, in the case of Borthwick an executor-creditor, No 53. p. 3655. Replied, The fallacy of this argument lies in confounding single and liferent escheat; for, in the first case, it belongs to the King, as King jure coronæ ; and therefore all creditors doing diligence before citation in the declarator are preferred; but the liferent is due qua superior, and the vassal by the rebellion being capite minutus, the fee returns during his life to the superior; and the heritable bond bearing a clause to infeft, was no more than a personal obligement on the vassal till sasine was taken thereon; and if that was delayed till the year and day after the denunciation was run, then the escheat was fully devolved, and was such a medium impedimentum that hindered the retrotracting the sasine to the heritable bond, its warrant, and so can never prejudge the superior's casualty of escheat. See Harris contra Glendinning; No 58. p. 3060. and Stair, p. 265, (276.) and the case of Milne and Clarkson, No 64. p. 3664. there cited. The Lords found, by the constant tract of decisions, the donatars to liferent escheats have always been preferred to infeftments taken after the year of rebellion, though depending on causes anterior thereto; but thought if a law were made, it would be no iniquity to bring both the liferent and single escheat to one level, that creditors doing diligence before the gift or declarator may be preferred to donatars; but they could not alter the law and practice as it stood at present.
Fol. Dic. v. 1. p. 256. Fountainhall, v. 2. p. 601.*** Forbes reports the same case:
The gift of Archibald Murray of Spot his liferent escheat acquired by Lord Alexander Hay (who purchased the barony of Spot by a minute of sale, after Archibald Murray had been denounced and registered at the horn), being found to accrue to the rebel and his creditors; with the burden of the expense of the gift, and debt in the horning, and other sums Lord Alexander had advanced to the rebel; and it being found, That others of his creditors ranked in Lord Alexander's backbond to the Exchequer, had right to the annualrent of the price in the terms of the minute, as coming in place of the rents of the lands; Lord Alexander craved allowance out of the price of 16,000 merks, contained in an heritable bond, granted by the common debtor to Mrs Patricia Ruthven, from whom he had right.
The Earl of Glasgow and other Creditors in the backbond, sought to be preferred to the said heritable bond, upon this ground; That albeit the obligement therein to infeft, was prior to the denunciation, and the sasine following thereupon prior to the gift of escheat; yet sasine was not taken within year and day after the denunciation.
Alleged for Lord Alexander Hay; Voluntary deeds of the vassal after denunciation, do not indeed cut off the superior from his liferent escheat; but infeftment by a rebel who stood specially bound and obliged to grant it before the rebellion, being a necessary deed, which he might have been compelled to grant, hath always been sustained to prefer the creditor; which is plainly Lord Alexander's case. And seeing liferent escheat is only a casuality introduced by statute, as a penalty for disobedience to the law; when it falls to the crown, there seems to be the same reason for the preference of lawful creditors completing their rights before the gift or declarator thereon, as in the case of single escheats, to prefer a lawful creditor before the rebellion, doing diligence or completing his right after the gift, before declarator, which is always done.
Answered for the other Creditors; There is a great difference betwixt the single and liferent escheat; in so far as the former falls to the sovereign, jure coronæ by the rebellion; whereas the later is competent to every superior, by reason of the fee, and that the vassal being in the construction of law capite minutus, cannot serve the superior; and a gift of liferent escheat needs no declarator to complete it. Though the bond and precept of sasine were granted before the denunciation, it still continued in the state of a personal obligement, till after the casuality fell to the fisk; and personal obligements cannot compete with the superior, or donatar of the liferent escheat. Seeing infeftment was not taken within the course of the rebellion, that is, within year and day after the denunciation, jus erat quæsitum domino superiori, which no posterior infeftment can take from him. And seeing the gift and declarator adds no new right to the superior, but only declares what was his by the denunciation, and the rebel's continuing year and day at the horn; it is all a matter, whether the infeftment be prior or posterior to the gift, Stair, Instit. p. 265. (276.)
Replied for Lord Alexander Hay; All the decisions preferring the donatar, were in cases where the infeftment was taken after the liferent escheat was gifted; whereas the infeftment in question is more than year and day anterior to the gift.
The Lords found the gift of escheat preferable to the heritable bond.
