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Scottish Court of Session Decisions >>
Wright v butchart. [1662] Mor 9112 (00 June 1662)
URL: http://www.bailii.org/scot/cases/ScotCS/1662/Mor2209112-004.html Cite as:
[1662] Mor 9112
Moveables in, a house, let with the house, cannot be sold by the tenant, for the pro-prietor may evict them, a quocunque possessore.
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There being an adjudication purchased of certain tenements in Leith, and of the heirship moveables belonging to umquhile James Johnston in Leith, against Isobel Johnston his sister, who had renounced to be heir to him; this adjudication is assigned to James Wright hatmaker, husband to the said Isobel, who sets the lands to Alexander Comrie; and he, as tenant, enters to the possession thereof, and of the heirship moveables within the house; which Alexander having possest the house and goods diverse years, he did thereafter dispone the goods to John Butchart, who meddled therewith, whereupon the said James Wright pursued Butchart for the price of the goods. It was alleged for Butchart, That he ought to be assoilzied, because he had right to the goods by a written disposition from Comrie, who, as owner, had possest the samen, without payment of any duty therefor; and, conform to the disposition, the goods were delivered to the defender by way of instrument, and he in possession accordingly. It was replied, That the defender cannot be heard to say, that Comrie was owner; because the goods were per expressum adjudged from the apparent heir of James Johnston, who Was in possession thereof, and they extant within his dwelling-house; and Comrie cannot say that he was in possession thereof otherways than a tenant in the house under James Wright, to whom, though he paid not duty expressly for the goods, yet having taken the house from him for payment of mail and duty, and as tenant having entered to the possession of the house where the goods were, and accordingly having possest both house and goods, any possession Comrie had was the pursuer's possession, and consequently the defender's right, and pretended possession, cannot be respected.
The Lords repelled the allegeance, in respect of the answer or reply.
