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Scottish Court of Session Decisions >>
Andrew Thomson, Factor appointed by The Lords upon the Estate of Crabston v John Elderson. [1757] Mor 4070 (9 July 1757)
URL: http://www.bailii.org/scot/cases/ScotCS/1757/Mor1004070-028.html Cite as:
[1757] Mor 4070
Factor appointed by the Court of Session. - Act of Sederunt 1611.
Andrew Thomson, Factor appointed by The Lords upon the Estate of Crabston v. John Elderson
Date: 9 July 1757 Case No. No 28.
A factor named by the Court of Session on a sequestrated estate, has all the powers of management which belong to a proprietor infeft.
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Betwixt these two parties this abstract question occurred, whether a factor upon an estate, sequestrated on account of a competition betwixt two claimants, neither of whom are infeft, can remove a tenant who continues to pay the rent that he did to the original proprietor?
Pleaded for Elderson the tenant, As the favour of possession is in law very great, so no tenant in possession can be removed but by a person who has a stronger right in him, viz. the property evinced by an infeftment. Besides, in the law of Scotland, a tack, if clothed with possession, is a real right; and therefore, added to the favour of possession, there is likewise the favour due to a real right, which nothing but a property and a possession can remove. Founded on these principles, the law of Scotland carries the rule, that only a person infeft can remove, so far, that even an apparent heir cannot remove, although in a manner the same person with his ancestor, drawing the rents, living in the mansion-house, and with whom, at the distance of three years, creditors are in safety to contract.
Any exceptions from the general rule do only tend to strengthen it. An adjudger, with a charge against the superior, may remove; but this is only because a particular statute has made a charge equivalent to an infeftment. A liferenter, by the courtesy, or by the terce, may remove; but this is only because, by the general concession of our law, the continuance of the possession in these cases is deemed to be a continuation of the property which the deceased husband or wife originally had. A tacksman may remove a subtacksman who was bound to remove; but this is only because the subtacksman cannot come against the right by which himself holds; and in a question betwixt him and a person from whom he derives right, this last is, quoad him, a quasi proprietor.
Answered, A factor appointed by the Court of Session ought to have all the powers of a proprietor infeft, to enable him to manage the estate to the best advantage; and as he acts under the authority of the Supreme Court, and is tied down upon strict regulations, for the benefit of those who shall be found to have the preferable right, it would be absurd to control his power of setting the lands to the best advantage, on account of a maxim in law, which was calculated only to prevent intruders from removing tenants from the possession.
‘The Lords decerned in the removing.’ See Removing.
For Thomson, Garden.For Elderson, Jo. Dalrymple.
Fol. Dic. v. 3. p. 203. Fac. Col. No 41. p. 68.
