Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.
Subject_2 DIVISION IV.

Vitious Intromission.
Subject_3 SECT. II.

Where Possession commenced lawfully, the continuing in Possession will not be Vitious Intromission.

Brown
v.
The Earl of Lothian

Date: 9 June 1680
Case No. No 165.

It being pleaded, that the fiar of a coal-work did, after the liferenter's death, continue to works by his servants, with the instruments of the coal-work which belonged to the liferenter; this was repelled, it not being properly an intromission, but only a continuation of possession.

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William Brown pursues the Earl of Lothian as vitious intromitter with his father's moveables, for payment of a debt of his father's, contracted after the disposition of the estate of Lothian to him, and condescends that the Earl intromitted with the instruments of the coal-work, and with the tiends of the feuers of Newbottle.—The defender answered to the first, That his father having disponed to him the estate, with coal and coal-heughs, with reservation of his own liferent, the property of the coal-heughs carries therewith the necessary instruments of the coals, though not expressed; and his father having disponed his liferent right to Sir Patrick Murray, he possessed till his father's death; after which the defender continued to uplift the profit of the coal, the servants of the coal remaining the same, and retaining the instruments of the coal-work; and denies any other intromission; so that though the instruments of the coal-work could be questioned, as not carried by the disposition of the coal-heugh, yet the servants continuing to work with the same instruments, could never infer a vitious passive title against the Earl, albeit executors might have recovered the instruments from the work-men; and as to the tiends, the Earl uplifted a part of the feuers’ teinds by virtue of a tolerance from Sir Patrick Murray, to whom the late Earl disponed the feu-duties and tiends of his liferent lands.—The pursuer replied to the first, That instruments of a coal-work, not being fixed to the ground, were certainly moveables, and so could not be carried by the disposition of the land and coal-heugh, unless they were expressed, but would belong to executors, and fall in escheat in the same way as steelbow-goods, or the plough and plough-goods upon the mains, which being continued to be made use of by servants, by their master's knowledge and approbation, would infer his vitious intromission; and the Earl could not be ignorant that the servants continued to make use of the instruments which were his father's; and as for the feuers’ tiends, they are not disponed by his father to Sir Patrick.

The Lords found, That though the servants in the coal-work continued to make use of the instruments of the coal-work, either fixed or unfixed, this did not infer vitious intromission against the Earl; but did not determine to whom the property of the unfixed instruments did belong, such as picks, buckets, and mattocks, &c.; and found the tolerance from Sir Patrick Murray relevant to liberate from the universal passive title, albeit the disposition had a general clause, dubious whether it would extend to the feuers’ teinds or not; seeing a colourable title was sufficient to exclude this universal passive title.

Fol. Dic. v. 2. p. 42. Stair, v. 2. p. 768.