Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Joass
v.
Lord Banff

Date: 23 July 1765

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In this case the Lords found that the rents due at the time of the death of the apparent heir belonged to his executors and not to the next heir, contrary to what had been decided in the case of the estate of Rosehall; dissent. Auchinleck, Alemore, and it carried only by a majority of one and the President.

It was observed by Auchinleck, that the succeeding heir paying the nonentryduties for all the years of the intermediate heir's possession, plainly shows that, by construction of law, the whole intermediate rents are understood to belong to the heir entering; and the exception which by practice has been introduced, contrary to principle, has gone no farther than to give to the heir-apparent the rents which he had actually uplifted, or for which he has taken decreet, or which his creditors have arrested or confirmed after his death. This last was going very far; but it would be carrying the thing much farther, if it should be found that not only the creditors of the apparent heir, but also his executors, should carry off those rents.

N.B.—I think that the right of the apparent heir to the rents should be considered like that of a bona fide possessor, which is only made effectual perceptione.