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John Jolly Merchant in Edinburgh v The Viscount of Kenmure. [1687] Mor 9672 (26 January 1687)
URL: http://www.bailii.org/scot/cases/ScotCS/1687/Mor2309672-030.html Cite as:
[1687] Mor 9672
Intromitting with the Predecessor's Writs and Evidents.
John Jolly Merchant in Edinburgh v. The Viscount of Kenmure
Date: 26 January 1687 Case No. No 30.
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The debate, John Jolly merchant in Edinburgh, against the Viscount of Kenmure, on the passive titles, was advised; and the Lords found it a passive title, that he had given back a tack of teinds which was for years to run, and had taken a new one in his own name. See the like found before in Stair's Institutes, B. 3. T. 7. But they found the Viscount's allegeance relevant to purge this passive title, that he bruiked by an expired comprising, providing always that the comprising expressly mentioned and contained tacks of teinds; which was thought too favourable for apparent heirs.
Fol. Dic. v. 2. p. 29. Fountainhall, v. 1. p. 443.*** Harcarse reports this case:
1686.—March—. My Lord Kenmure being pursued as representing Lord Robert, upon this passive title, that he, the defunct's heir-male, had intromitted with teinds, whereof his predecessor had died in the possession by virtue of tacks yet unexpired;
Answered; The procuring a tack from the bishop, and paying a grassum to him by the defender, (who was not master of the charter-chest that was sequestered,) being error facti invincibilis, ought not to make a passive title.
Replied; An apparent heir cannot pass by the predecessor's rights, and acquire new rights of the same subject; and the defender's predecessor's right to the teinds uplifted, was notour in the country.
The Lords sustained the passive title; but thereafter stop till November.
1687.—February—. In the foresaid cause at the instance of Jolly contra the Lord of kenmure, mentioned supra, March 1686; it was farther alleged for the defender, That the tack of teinds was apprised, and the legal expired before Lord Robert's death. 2do, The defender offered prove, that he had a factory from the appriser, in case the legal were not expired; which allegeances the Lords found relevant separatim; and it was not pleaded by the pursuer, that Lord Robert died in possession of the teinds, though the legal expired.
