Scottish Court of Session Decisions

Subject_1 COMPETENT.
Subject_2 SECT. XXI.

In Competition, Pleas are receiveable by Exception, which otherwise would be Competent only by Reduction.

Law
v.
La Balgony.

Date: 3 March 1626
Case No. No 90.

The Lords preferred a public infeftment, though posterior, to a private one clothed with possession, because that which was public proceeded on a contract of marriage, and inhibition executed thereupon, before the other party was infeft and had obtained possession; and this was sustained by way of exception, in a poinding of the ground at the instance of the private infefter, without any necessity found for the inhibiter to reduce.

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Law in Kirkaldy pursuing the Lady Balgony for poinding of the ground for an annualrent, wherein the pursuer was infeft, to be holden of the L. Balgony, and which infeftment was clad with possession diverse years, before the year for which the action was pursued; the defender alleged, That he was infeft by a public infeftment, following upon a comprising; which infeftment and comprising, albeit it was posterior to the pursuer's right, yet the same depended upon a contract of marriage, whereby the author of the pursuer's right was obliged to provide the bairns of that marriage to a certain sum of money; upon the which contract, inhibition was served at the instance of the Laird of Dury, father to the Lady Balgony, who was a special contractor with the L. of Balgony in that contract of marriage, and which inhibition was executed before the granting of the infeftment by the L. of Balgony to the pursuer; for not fulfilling of the which condition of the said contract by the L. Balgony, he being now deceased, the lands controverted desired to be poinded, were comprised by the eldest son of that marriage, in whose favours the said contract, anent the provision of the sums therein contained, was conceived, and upon which comprising he was publicly infeft; so the said comprising and infeftment public, albeit posterior to the pursuer's right, ought to be drawn back to the said contract of marriage, in respect of the nature thereof, and favour by the law due to the same; and in respect of the said inhibition before the pursuer's right, especially seeing now by virtue of the said public infeftment the defender was in possession.——The Lords found this exception relevant, and preferred the public in-infeftment posterior to the pursner's prior infeftment, in respect of the preceding contract of marriage, and inhibition executed before the pursuer's right and possession had, conform to the public right; which exception, founded upon the prior inhibition, was received in this same judgment: And the Lords found no necessity that the defender should be put to reduce the pursuer's right, upon the ground of that anterior inhibition, but received the same in this action; albeit the pursuer replied, that his infeftment, clad with possession, could not be so summarily taken away by the said inhibition; neither could the possession alleged by the defender be respected; because the lands falling in ward by the decease of his author, and the ward being only expired this year controverted, whatever possession was acquired from the donatar of the ward, who was conjunct person, friend, and kinsman to the defenders, ought not to be respected in the pursuer's prejudice; but the matter ought to be handled as if the parties were disputing before the ward fell; at which time the pursuer was in actual possession of his annualrent; which answer was not respected, but the public infeftment, contract, and inhibition, and possession, and exception proponed thereupon, were admitted, as said is.

Act. Hope & Baird. Alt. Aiton. Clerk, Gibson. Fol. Dic. v. 1. p. 177. Durie, p. 188.