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Scottish Court of Session Decisions >>
Sibbald v L.Lethentie and L. Clunie. [1623] Mor 3616 (26 February 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor0903616-006.html Cite as:
[1623] Mor 3616
What falls under Single, what under Liferent Escheat.
Sibbald v. LLethentie and L. Clunie.
Date: 26 February 1623 Case No. No 6.
The sub-vassal's liferent escheat falling to the vassal, is carried as a part of the vassal's single escheat when the vassal afterwards becomes rebel; but the vassal's liferent escheat falling, the donatar thereof is entitled to the liferent escheat of the sub-vassal falling thereafter.
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The Laird of Clunie holding the lands of Clunie of the Bishop of Dunkeld, dispones the same, by two charters, to the Laird of Lethentie; the one to be holden of himself, the other of the superior, and he is infeft to be holden of Clunie; thereafter they are both at the horn, and remain year and day thereat, whereby Lethentie's liferent holden of Clunie of the said lands of Clunie falls in the Laird of Clunie's hands his superior, and the same falls in the Bishop's hands as Clunie's superior, by Clunie's liferent, through his rebellion year and day. The gift of Clunie's escheat, after his lying at the horn year and day, is gifted by the King to Mr Patrick Sibbald, who obtained a general declarator, and thereafter seeks and pursues for a special declarator, to have the liferent right of these lands adjudged to pertain to him by the simple escheat, as coming under the same, as a casuality belonging to the King, in respect Clunie's vassal, viz. Lethentie's liferent falling to Clunie, Clunie's rebellion made Lethentie's liferent to pertain to the King, as a part of the casuality of Clunie's simple escheat; and so he contended, that Clunie's superior could not pretend right to the same, as falling to him by Clunie's rebellion year and day. The Lords found, that Lethentie's liferent of these lands, which, by his being year and day at the horn, fell in Clunie's hands who was his superior; but Clunie's rebellion fell not to the King, as a part and casuality of the simple escheat; but found, that in respect Clunie himself was year and day at the horn, by the space of three months before his vassal Lethentie's rebellion year and day expired, that therefore by Clunie's being year and day at the horn before Lethentie his vassal, the liferent of the lands pertained to the Bishop, and was acquired to him before it could be acclaimed as a casuality of Clunie's single escheat, and after Clunie's liferent fell to the Bishop, whatever could accresce to Clunie by the continuing and remaining of Clunie's vassal, when year and day ran, and so when it was by the expiring of the year acquired by Clunie, the same accresced to the Bishop, in whose hands Clunie's liferent had fallen before, and consequently the Bishop having confirmed the said Lethentie's right of the lands after his liferent, and Clunie's was acquired to him by their fore said rebellion, albeit the said confirmation was done after the gift granted to Sibbald by the King, of Clunie's escheat, and after the general declarator recovered thereupon, yet being before any special declarator obtained by the King's donatar, the same was found, by the Lords, sufficient to exclude the King's donatar from all right to that liferent acclaimed, as it would have excluded Clunie's self, if he had sought the same.
Act. Hope & M'Gill.Alt. Lermonth & Stuart.Clerk, Hay.
Fol. Dic. v. 1. p. 253. Durie, p. 51.
