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Scottish Court of Session Decisions >>
Crawford v Christie. [1674] Mor 5095 (13 November 1674)
URL: http://www.bailii.org/scot/cases/ScotCS/1674/Mor1205095-024.html Cite as:
[1674] Mor 5095
A donatar of liferent, constituted by the King, was found to have right to pursue for the duties of lands as holden of the King, unless another superior would instruct his right.
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Andrew Crawford, as donatar to the liferent escheat of Mr James Winraham pursues the tenants of some tenements in Edinburgh, belonging to Winraham, for payment of their duties; compearance is made for James Christie, who alleged, that he was infeft in an annualrent out of these tenements; but his infeftment being year and day after the horning, the allegeance was repelled. He now further alleges, That the pursuer as donatar by the King, can have no right to these duties, because the King is not superior of this tenement, which being an alterage, the patron of the alterage is superior by act of Parliament 1661, cap. 54. It was answered, That both in the general act of annexation there is an exception of alterages, provostries, chaplainries, which had laick patrons, who are, presumed to have founded the same, and likewise in the late act; but there is nothing alleged or instructed that, this alterage is a laick patronage, and therefore the King's right which is founded in jure communi, presumes him to be patron; and neither the tenants nor the annualrenter can found themselves upon the laick patron's interest, which is jus tertii, upon which they cannot make litiscontestation, which will be effectual against the laick patron, unless he concur.
The Lords sustained this allegeance, and found that the King is presumed patron and superior of this chaplainry, unless another patron concur and instruct his right.
