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Scottish Court of Session Decisions >>
Sir Robert Sinclair v Laird of Houston. [1666] Mor 1289 (15 June 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0301289-015.html Cite as:
[1666] Mor 1289
Publication by Process of Mails and Duties, and Poinding of the Ground.
Sir Robert Sinclair v. Laird of Houston
Date: 15 June 1666 Case No. No 15.
A decree of poinding the ground against the tenants and possessors, though the heritor was not called, found sufficient to validate a base infeftment, and to interrupt prescription.
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Sir Robert Sinclair pursues a poinding of the ground, of the lands of Leni, upon an old annualrent of 20 merks, constitute above 100 years ago. Houston alleged absolvitor, 1st, Because he bruiked these lands past prescription, peaceably, without any pursuit upon this annualrent. 2dly, Because this annualrent was base, and never yet clad with possession; and his infeftment was public. It was answered to both, That the pursuer produced a decreet of poinding the ground in anno 1608. Since which, the pursuer's minority being deducted, it is not 40 years. Likeas, there is produced a precept of poinding for the said annualrent. It was answered, That the decreet in anno 1608 was only against the tenants and possessors, and so is null, the heritor not being called. It was answered, 1st, That albeit the decreet had been defective, for not calling the master, yet it was sufficient to interrupt prescription. 2dly, It was sufficient to give possession, and to validate a base infeftment by a civil possession; for as natural possession, by the tenant's payment, would have been sufficient though without their master's knowledge or consent; so a decreet, yea, a citation, against them, is sufficient for a possession, as being equivalent to a natural possession: and albeit the proprietor could not be prejudged, as to the constituting an annualrent, in the point of right, not being called; yet as to the point of possession, the right being constitute, he might. 3dly, Albeit the heritor must be called, when his ground is first affected with an annualrent, in attinenda possessione, yet if the annualrenter be in possession, he may continue the same, without calling the master, as well as in teinds, thirlage, &c. And here the old precept of poinding was evidence sufficient of a prior possession, in re tam antiqua.
The Lords found, that the decreet was possession sufficient to interrupt prescription. See Prescription.
