Scottish Court of Session Decisions

Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. I.

What title requisite. - What time requisite. - Connection of possession.

James Hamilton
v.
The Tenants of Oversheils

Date: 13 December 1661
Case No. No 4.

Possessory judgment not competent upon fewer than 7 years possession.

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James Hamilton merchant in Glasgow, having right to two apprisings of the lads of Oversheils; pursues the tenants for mails and duties, and after litiscon testation, John Rollane writer compears for his interest and produces an apprising at his instance, with a charge against the superiors. It was alleged he could not be admitted in this state of the process. The Lords admitted him, in respect he craved no alteration to be in the litiscontestation, but concurred therein and craved preference to what should be found due thereby. The said John being admitted, alleged, He ought to be preferred, because he had charged the true immediate superior, whereas the other two apprisers had taken infeftment, as if the lands had holden immediately of the King. It was answered for James Hamilton, That he ought to be preferred, because he was infeft long before John Rollane, and supposing his infeftment were not of the immediate superior, yet being in possession by virtue thereof five or six years, he hath the benefit of a possessory judgment, and his infeftment cannot be taken away without reduction.

The Lords preferred John Rollane, and granted not the benefit of a possessory judgment without seven years possession.

Fol. Dic. v. 2. p. 88. Stair, v. 1. p. 69.