Scottish Court of Session Decisions

Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. VI.

Against what Rights does it take place? - Runs not contra non valentes agere. - if competent against an Action of Warrandice? - Runs against Minors.

Boyd
v.
Justice

Date: 15 July 1675
Case No. No 50.

A second compriser not liable for bygone mails and duties to a first compriser, till he be cited, but cannot crave the benefit of a possessory judgment against a first compriser.

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In a pursuit at Bailie Boyd's instance, for mails and duties, as being publicly infeft upon a comprising, it was alleged for the defender, That he had possessed by virtue of an apprising at his instance, and so could not be liable for bygones, being bona fide possessor. It was replied, That the pursuer being first infeft by a public right had good interest to pursue for the whole mails and duties since his comprising, and as the common debtor would have been liable, so ought the second compriser, who had only jus reversionis. The Lords did sustain the defence notwithstanding, and found that a second compriser entering to the possession, was not liable for any mails and duties before citation. It was farther alleged, That the defender had the benefit of a possessory judgment, and so could not be decerned for mails and duties, until his right were reduced. It was replied, That the case being betwixt two comprisers, and not betwixt two heritors who had several dispositions of one and the same lands, nor betwixt the pursuer and the annualrenter who had comprised for by gone annualrents, the defender could not crave the benefit of a possessory judgment. The Lords did repel the defence, and found, that a second compriser having only nudum jus reversionis of the first comprising, albeit as to by gones he was bona fide possessor, yet he could not crave the benefit of a posessory judgment, not being in the case of an annualrenter, who had comprised for bygones due before the first compriser, or in the case of a second heritable disposition, who might justly defend upon seven years possession, until the right were reduced.

Gosford, MS. No 782. p. 186. *** Stair reports this case:

John Boyd having apprised certain lands, pursues the tenants for mails and duties. Compearance was made for Bailie Justice; who alleged, That he or his authors were infeft in the lands in question, and by virtue of their infeftments, were seven years in possession before intenting of the pursuer's cause, and thereby had the benefit of a possessory judgment to possess it, till their rights be reduced, which was found relevant in general, reserving contra producenda. And now the defender produceth an infeftment of annualrent out of the lands in question, and an infeftment upon the property thereof upon an apprising; against which the pursuer alleged, That the infeftment of annualrent could not give the benefit of a possessory judgment, because it is no right by which the lauds can be possessed, but only an annualrent out of the land; and being debitum fundi, a possessory judgment of property will not exclude an annualrent, neither can an annualrent be the foundation of a possessory judgment.

The Lords found, that the annualrent could not be the ground of a possessory judgment.

The pursuer further alleged; That the infeftment upon the apprising produced by the defender could not be the ground of a possessory judgment, to exclude his apprising, being led within year and day of the defender's apprising, and therefore he must come in therewith pari passu, according to the proportion of the sums. It was answered, That the defender having possest seven years by virtue of his apprising, had thereby the common benefit of a possessory judgment competent upon all infeftments of property, until in petitor the pursuer declared his apprising should come in pari passu. 2do, Though the pursuer could come in summarily for his proportion since the citation, yet the defender having bruiked by his infeftment, was bona fide possessor, and cannot be comptable for the bygone fruits before citation.

The Lords found, that the pursuer without declarator had access to a proportional part of the mails and duties since the citation, in respect of the tenor of statute 1661, betwixt debtor and creditor, declaring apprisings within year and day to come in pari passu, as if one apprising had been deduced for all, and therefore the infeftment upon the first apprising, is a common infeftment for the rest; but found, that before citation, or being put in mala fide, the defender possessing, was tutus exceptione, and not comptable to posterior apprisers for the duties, which were to be imputed in his sums.

Stair, v. 2. p. 351.