Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

The Laird of Kilkerran
v.
Ferguson

Date: 1 December 1632

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The L. Kilkerran,—having comprised certain lands from one Ferguson, and having charged the superior to enter him therein; and the same lands being thereafter adjudged to another creditor of this same common debtor's, who was infeft by virtue of the said sentence of adjudication therein, in anno 1626, and, conform thereto, in possession of the lands; but after Kilkerran's comprising, and charge given to the superior, which preceded the other party's adjudication, the said comprising being in anno 1625,—pursues this other creditor for repayment of the duties of the lands uplifted by the said other creditor, by virtue of his adjudication of the years 1627, 1628, 1629, and 1630. Wherein this creditor, defending himself with his adjudication, infeftment, and real possession, and thereby claiming preference, seeing he alleged that Kilkerran was not infeft nor seised, without which he could claim no right to the lands, especially against another creditor infeft, as said is; and that his diligence against the superior could not be equivalent to a sasine against this excipient;—and Kilkerran claiming preference, in respect of the anteriority of his comprising and diligence: likeas, in another process of double poinding, wherein this same excipient was party, for the duty of these lands, anno 1631, he was decerned to be answered of that year, which must give him alike right to all years since his comprising;—the Lords, notwithstanding of the anteriority of Kilkerran's comprising and diligence against the superior, and sentence for the year 1631 in his favours, which was given, this party being absent,—found that the excipient ought not to repay the bygone years acclaimed; for the sentence for the year 1631 was given upon the duties of the lands then extant, neither uplifted nor consumed; and the other years bypast, now controverted, were uplifted, and were, bona fide, percepti et consumpti, conform to a true title, and bona fide; the other party having no real right, and which could not be supplied by his diligence, albeit prior to this defender's, seeing nothing followed thereupon; and the said compriser, after he had charged the superior, did never prosecute his charge, but suffered the same to lie still and sleep, and did no more while July 1632,—at which time the superior being of new charged by him, and the superior then suspending, the suspension was discussed, and he ordained to be infeft, paying to the superior the year's duty, then modified for his entry, which yet he had not paid; and so in effect it was his own fault and cessation that he was not infeft, which ought not to be prejudicial to another creditor, as the excipient was to use his lawful diligence; and, having so done, and being infeft and in possession, he was preferred, and assolyied from this pursuit, especially the question being for bygone years, now not extant, but consumed; the excipient having a just title et possessionem bona fide acquisitam; et ubi præcedit titulus verus, vel etiam putativus, quamvis ex errore, si justus error sit, semper bona fides præsumitur, et possessor bona fide semper postea facit fructus suos, donec constiterit de ejus mala fide; tunc vero ab illo tempore tenetur fructus restituere, ut ait Bartol. in leg. qui, bona fide, ff. de acquirendo rerum dominio, et in l. qui scit, sect. finali, ff. de usuris; idem in l. usucapio. sect. fructus, ff. de usurp. et usucapionib. ubi dicitur bonæ fidei possessorem, non teneri restituere fructus, quamvis extantes, si per triennium possederit; mala fides autem probatur per denunciationem possessori factam: item, si coram aliquibus dixerit se scivisse rem ab eo possessam fuisse alienam: item, si fama fuerit in vicinia, eum mala fide possidere, et ipse erat vicinus; ut ait Bartol. Leg. Celsus ff. de usurpationib. et usucapionib.

Act. M'Gill. Alt. Mowat and Neilson. Gibson, Clerk.

Vid. 22d January 1633, Gordon; 14th February 1633, Charters; ult. January 1632, Ferguson.

Page 654.