Scottish Court of Session Decisions

Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. I.

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

Mr George Johnston
v.
Sir Charles Erskine

Date: 6 February 1668
Case No. No 8.

Where neither infeftment had passed on an apprising, nor a charge against the superior, there was found not sufficient title for a possessory judgment.

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The lands of Knockhill being a part of the lands of Hoddam, did belong to Richard Irvine, and were comprised from Robert Irvine great grand child to the said Richard as charged to enter heir to the said Richard, at the instance of Mr John Alexander minister at Hoddam; but no infeftment nor diligence against the superior having followed upon the said comprising during the said Robert's life; the Lord Lyon Sir Charles Erskine comprised from Mr James Alexander, son to the said Mr John, the right of his comprising, and obtained infeftment upon the said comprising in August 1666. The said Robert's two sisters and his sisters children, obtained themselves infeft as heirs to the said Richard their grandsire and fore-grandsire in June 1666. And upon a right from them, and their resignation, Mr John Johnston being infeft in October 1666, pursued for mails and duties, The Lord Lyon compeared and alleged, That he and the tenants ought to be assoilzied in this possessory judgment, because he and his authors had been in possession by virtue of the comprising at the instance of Mr John Alexander by the space of seven years, whereupon infeftment has followed. It was answered, That the allegeance is not relevant, unless he had said that he was in possession seven years by virtue of a real right, which cannot be said, the infeftment being late and of the date foresaid. It was further alleged by the Lord Lyon, That he ought to be preferred, because he was infeft upon the said comprising at Mr John Alexander's instance against the said Robert, as charged to enter heir to the said Richard; and his infeftment was anterior to the said Mr George's infeftment upon the resignation foresaid of the said Robert's sister and nephews retoured and infeft as heirs to the said Richard. It was replied, That no infeftment or diligence having followed upon the said comprising against Robert in his lifetime; his sisters and nephews might have served themselves heirs to the said Richard who was last infeft; and de facto was infeft as heir to the said Richard, before any infeftment upon Alexander's comprising; so that his author's infeftment being prior to the Lord Lyon's infeftment, the pursuer ought to be preferred; and as Robert, if he had been served special heir to his grandsire, if he had not been infeft, the next heir might have been infeft as heir to Richard; and an infeftment upon a right from them would have been preferable to a comprising against Robert; so in this case Mr George ought to be preferred; the special charge against Robert being only equivalent to a special service, and no infeftment having followed in the person of the said Robert or the compriser. It was duplied, That by the act of Parliament, James V. ch. 106. arl. 7., it is declared that execution against the apparent heir being charged to enter heir should be equivalent as if he were entered, which is the certification in the special charge; and, upon a comprising, if Robert had been infeft, infeftment being taken quocunque tempore even after his decease, before any other person had been infeft upon a comprising or right from a next heir, the comprising against Robert would have been preferable.

The Lords found, That the benefit of a possessory judgment is only competent by virtue of a real right, and that a compriser cannot claim the same without an infeftment or charge against the superior, and repelled the first allegeance.

The Lords found the second allegeance relevant, and preferred the comprising in respect of the infeftment thereupon, before the infeftment upon the right from the heirs of the said Richard.

Fol. Dic. v. 2. p. 88. Dirleton, No 155. p. 62.