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Scottish Court of Session Decisions >>
Hary Hamilton v William Hamilton. [1663] Mor 9655 (21 February 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor2309655-007.html Cite as:
[1663] Mor 9655
Intromission with the Predecessor's Rents is a Behaviour. What understood to be the Predecessor's Rents.
Hary Hamilton v. William Hamilton
Date: 21 February 1663 Case No. No 7.
An apparent heir intromitting with the rents of lands, which had been wadset by the defunct, but which were redeemed by him, and in his possession at his death, though there was no declarator of redemption, was found to infer behaviour. It was also found behaviour, that the apparent heir intromitted with rents of lands apprised from the defunct, but of which the legal was not expired.
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Hary Hamilton pursues his brother William, as behaving himself as heir to their father, John Hamilton, apothecary, to pay 6000 merks of provision by bond, and condescends that William intromitted with the rents of the lands of Ulistobe, whereunto his father had heritable right. The defender answered, That his father was not infeft; because he infeft the defender therein before his death, reserving only his own liferent. The pursuer answered, That the infeftment was under reversion, and was redeemed by the father, which order, though not declared, gave him the right to this land, and was more than equivalent to an heritable disposition, clad with possession, which would make the apparent heir's intromitting infer behaving as heir, for the declarator non constituit sed declarat jus constitutum.
The Lords repelled the defence and duply, in respect of the condescendence, and reply of the order used.
2dly, The defender alleged, Absolvitor; because those lands were apprised from the defunct, and thereby he was denuded; and so the defender could not be heir therein, at least he could have nothing but the right of reversion, which reacheth not to mails and duties.
The Lords found, that, unless the defender had title, or tolerance from the appriser, the legal not being expired, but the debtor in possession, his heir intromitting, behaved as heir, the apprising being but a security, of which the appriser might make no use, or but in part, as he pleased.
