Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Moor of Otterburn
v.
Bennet of Grubbet

Date: 17 June 1669

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There being mutual declarators betwixt the said two persons, anent the property of Greenlaw, Otterburn contending that it was part and pendicle of the lands of Otterburn, wherein he and his authors were infeft by Sir John Ker of Littledean, who was common author to both; and by virtue thereof had been in immemorial possession, without interruption. Likeas in anno 1616, in charter of the third part of the lands of Otterburn, Greenlaw was expressly designed and disponed therewith, to the said Moor's authors.

It was alleged for Grubbet, That, in the disposition of the lands of Otterburn, made to Moor in anno 1662, after the disposition and procuratory of resignation of the lands of Otterburn, with the parts and pertinents, there was likewise an assignation, to all right, kindness, and possession, which the disponer or their predecessors had of the lands of Greenlaw; which was declared to be their only right.

The Lords, notwithstanding, did sustain Otterburn's right of property, in respect that that declaration was only general, and could not take away an express right of property contained in a prior charter; and that the said lands were never particularly designed in the common author's right, or his predecessor's right, as a distinct tenement; and that he had never quarrelled Moor and his predecessor's right, in his time; nor Grubbet, nor his father; who had no other right to Greenlaw but by a new charter, granted in anno 1635, upon his own resignation, and not in the first right made to him of the lands of Morebottle.

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