Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. VIII.

Mala Fides induced by Process, whether it will take place from Citation, Litis-contestation, or Decree.

Gray
v.
Watson

Date: 23 February 1672
Case No. No 36.

In a reduction of land rights, it appearing by the pursuer's reduction, that he was clearly preferable, the defender was found liable to account from the citation.

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Gray having an ancient infeftment of Barbanoch from the Lord Gray, but his father having died when he was young, his tutor possest; and his tutor also dying in his pupillarity, the tutor's wife continued in possession. In the mean time Watson, who had married her sister, takes a new original right from the master of Gray, and comes to possession by the consent of his wife's sister without process. Gray, who was minor, having entered heir to his grandsire, and being infeft, Watson compeared and excepted upon his infeftment, and alleged the benefit of a possessory judgment, being seven years in possession, which the Lords sustained; whereupon Gray raised a reduction, and did reduce Watson's right, as being long posterior to his right; and the question arising, whether Watson should be liable for the mails and duties from citation, litis-contestation, or sentence in the reduction: It was alleged for Gray, that the only ground that could free Watson from mails and duties, was, that he was bona fide possessor cum titulo, & fecit fructus perceptos suos: And whensoever that ground ceaseth, the duties are due to the reducer who hath right, which is sometimes found to be from the citation, litis-contestation, or sentence; but here it must be from the citation, because the pursuer's right was produced and shown to the defender in the former pursuit of mails and duties, whereunto he had nothing to object, but the benefit of a possessory judgment; so that he cannot be said only to doubt or hesitate of his right, but to know clearly that he had no right, although he was secure, till reductionwas intented, by the privilege of a possessory judgment: And as his possession was not bona fide, so it was vitious and clandestine, neither attained by authority nor consent, but by the collusion of his good-sister the tutor's wife; and Watson having lived within two miles, could not be ignorant, that Gray's predecessors were reputed heritable possessors. It was answered foar Watson, That Gray being but infeft as heir to his grandsire, and of a long time out of possession, he might lawfully take a right from the Master of Gray superior, who might have recovered the right of property ad remanentiam, or by recognition; so that the sight of the pursuer's right could not put Watson out of doubt of his own right. It was replied, That there was neither resignation nor recognition, nor did Watson propone any thing thereupon in the reduction.

The Lords found the mails and duties due since the citation on the reduction.

Fol. Dic. v. 1. p. 111. Stair, v. 2. p. 76. *** Gosford reports the same case; giving the defender the name of Howison.

In a pursuit for mails and duties at Gray's instance, as infeft as heir to his father in the lands of———, holden of the Master of Gray, from the date of the citation of the reduction formerly pursued at his instance against Howison, wherein he had obtained decreet, it was alleged, That the defender was only liable post latam sententiam, he being bona fide possessor, as being infeft upon a charter granted to him by the master of Gray, who was infeft in the said lands. It was replied, That the defender could not be reputed bona fide possessor, seeing the pursuer's father died infeft, and had been long in possession of the said lands as heritor; and that, after his death, the pursuer's tutor had continued in possession during his lifetime, which was well known to the defender, who did marry the tutor's wife's sister, and by collusion made her to remove, and so did enter to the possession without any pursuit or decreet obtained against the pursuer, who was minor; and, if he had been called, would have defended against any right granted by the Master of Gray, who was only superior, and could neither remove, nor pursue him for mails and duties.——The Lords did repel the defence, in respect of the reply, and found, that albeit where parties are in probabili ignorantia, and have a title, they are sometimes only found liable after sentence or litis-contestation, as to which they have a latitude according to the merits of the cause; yet, where the entry to the possession is not legal, et viis et modis, but by collusion, they ought to be liable as possessors malæ fidei.

Gosford, MS. p. 252.