Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Steven Touch
v.
The Tenants of Falkland

Date: 21 January 1664

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In 1642, William Touch, merchant in Leven, and Christian Cunnygham, his spouse, and the longest of them two in conjunct fee, were infeft in an annual rent of L.80, to be uplifted yearly, furth of the lands of Falkland, that appertained to Jo. Avarie, burgess thereof. Upon the which infeftment William Touch in 1647 obtains decreet before the Lords, for poinding the readiest goods and gear that should be found on the ground of the lands, out whereof the annual-rent is payable; and failyeing thereof, to apprise the ground right of the lands, &c. After this, William dies; and his son George Touch serves and retours himself heir to his father; and, accordingly, in 1654 obtains himself infeft in the annualrent above rehearsed, to be uplifted out of the lands above written. Then George dispones the same to Stevin Touch, skipper in Leven. Conform to this disposition, containing assignation, the said Stevin was infeft in 1659; and thus, as having right, both by disposition and assignation, from one that was both served heir and confirmed executor, he raises a summons for poinding the ground, against the tenants and present possessors thereof. For instructing the summons there is produced William Touch's seasine, with the decreet obtained at his instance in 1647; then George his retour to his father, with his seasine following thereupon; then George's disposition thereof to this pursuer, with his seasine taken thereupon.

It is alleged, by the defender's procurator, That there can be no decreet of poinding of the ground at the pursuer's instance, because no seasine produced for him of the tenements of lands craved to be poinded. 2do, Though a seasine be produced, yet the same is base, and not clad with possession, and so cannot be respected. 3 tio, The ground cannot be decerned to be poinded, because in the tenements libelled they are tenants to one Martha Blyth, liferentrix of them.

To the first of thir it was replied,—That they opponed the seasine produced. To the second, opponed the decreet of poinding in 1647. Item, That they were tenements within burgh. To the third, the same must be repelled, because the said Martha Blyth is dead two years since; but if she be living, declares that this decreet shall not prejudge her right during her lifetime.

All which the Lords having considered, they ordained the ground to be poinded or apprised; but always with reservation of the said Martha's liferent, if alive.

Act. James Abernethie. Alt. Mr. David Balfour, Mr. Thomas Murray. Signet MS. No. 91, folio 34.