John White, late Bailie of Kirkcaldy, v. Daniel Reid
Date: 10 January 1712 Case No. No 15.
A creditor in a bond, bearing annual-rent, falls under civil rebellion. After year and day, and after his liferent escheat had been gifted, he leads an adjudication. The donator having right to the annual-rents, the adjudication, in so far as led, for security of them, accresces to him.
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In a competition for the mails and duties of the lands of Birkhill, betwixt Daniel Reid, as having right, by progress, to Sir David Arnot's single and liferent escheat, obtained by Sir Patrick Scot of Ancrum, in anno 1691, and assigned to Sir William Bruce, Daniel Reid's author, in the year 1704; and Bailie White, as having right, by disposition and assignation, from Sir David, to an adjudication of the estate, after the gift was declared:
Alleged for Bailie White:—The gift of escheat was simulate, and null by the act 145. Par. 12. Ja. VI. in so far as, though the gift was obtained in anno 1691, and declared in the 1693, Sir David is suffered to remain in the peaceable possession of his lands of Pitlethies, till this day. Which nullity is competent to be proponed by the rebel's creditors, and others deriving right from him; [March 28, 1637, Hamilton against Tenants, (Durie, p. 843. See Escheat.) January 6, 1666, Oliphant against Drummond, (Dirleton, p. 7. See Escheat.) December 20, 1676, Pallat against Vetch, (Dirleton, p. 123. See Escheat.) December 17, 1670, Langton against Scot, (Stair, v. 1. p. 703. See Escheat.) June 19, 1669, Scot against Langton, (Stair, v. 1. p. 620. See Escheat.)]—nothing being more contrary to law and reason, than to cover a rebel by a collusive gift of escheat, and maintain him in the peaceable possession of his lands, to the loss and ruin of his creditors, and purchasers from him.—2do, Sir David acquired not the foresaid adjudication till after the gift; and gifts of escheat extend not ad acquirenda: Therefore the rents of the lands adjudged can never fall under the gift. Hope Pract. 25th & 28th June 1622, Clapperton agst Inglis. (See Escheat.) So gifts of single escheat, extend only to goods pertaining to the rebel, at the time of the gift, and a year thereafter; 23d June 1684, Wilson agst Kennedy. (See Escheat.) And there is more reason, for so restricting gifts of liferent escheat, granted by the Sovereign (as this is), that there may be place for other donators quoad lands acquired thereafter; for no gift may be granted by the Queen, or her officers, except where some knowledge may be had of the value and extent of the subject falling under the gift.—3tio, Rents of lands adjudged, can never fall under liferent escheat, till the adjudication be expired; because the rebel cannot be said to have right to these, during his lifetime; and one or two years rent may perhaps satisfy his debt, and extinguish his adjudication. Now this adjudication was not expired, when disponed to Bailie White. And, however the donator might have pretended to the rents of the lands, had the adjudication expired in the person of Sir David; yet he being denuded before expiration, the donator's pretence is excluded.—Again, as when infeftments are granted for payment or security of a sum, neither the rents of the lands, in the first case, nor the sum burdening, in the second, can fall under the liferent escheat; so neither do the rents of lands adjudged before expiration of the legal.
Replied for Daniel Reid:—1mo, The act of Parliament 145, being conceived only in favours of the Sovereign, and her Majesty's donator, cannot be founded on against them by the rebel's voluntary assignee. All the decisions cited, proceed upon positive proof of simulation, by the rebel's acquiring the gift with his own means; and not upon the presumptive simulation, by allowing him to continue in possession. No doubt the rebel's creditor, before the gift, may competently insist upon the ground of simulation; but an assignee, after the gift, as here, cannot propone that allegeance.—2do, By the terms of this gift, the Sovereign has assigned all the mails and duties, annualrents, &c. that belonged to the rebel, at the time of the rebellion, or should belong to him at any time during his life. It is singular, that the rebel himself, or any claiming under him, after the rebellion, should compete, for the mails and duties of his lands, with the donator. But the adjudication being led upon a bond, bearing annualrent, that stood in the person of Sir David, at the time of the denunciation and gift, his life-rent escheat must carry either the annualrent of the money, or rents of the lands adjudged during Sir David's lifetime.—3tio, The annualrent of the sums, for which the adjudication was led, fell under the liferent escheat; and consequently, the rents of the lands, during the not-redemption, and, upon expiring of the legal of the adjudication, belonged to the donator during the rebel's lifetime; for there could be no redemption after expiring of the legal.
The Lords repelled the allegeance, founded upon simulation of the gift, by the rebel's possessing the lands after the gift, as not competent to the rebel's assignee: And repelled the ground of Bailie White's preference, founded on the adjudication, in respect the bond whereon that diligence followed, was in the person of the rebel, or his trustee, before the rebellion: And found the donator had right to the annualrents of the sum, for which the adjudication was led; and consequently to the rents of the lands.
