BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Montgomery v Home. [1664] Mor 10627 (22 July 1664)
URL: http://www.bailii.org/scot/cases/ScotCS/1664/Mor2510627-014.html Cite as:
[1664] Mor 10627
Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. II.
What sort of possession requisite.
Montgomery v. Home
Date: 22 July 1664 Case No. No 14.
After decree of removing, which stated the pursuer in the civil possession, the defender continuing to possess seven years without interruption, was not found to have the benefit of a new possessory judgment.
Click here to view a pdf copy of this documet : PDF Copy
William Montgomery pursues Alexander Home to remove, Who alleged, Absolvitor, because he stands infeft, and by virtue thereof in seven years possession, and so hath the benefit of a possessory judgment. It was replied, That, before any such possession, a decreet of removing was obtained against the defender, which made him mala fide possessor. It was duplied, That since that decreet, which was in absence, the defender had possessed it seven years without interruption, which acquired the benefit of a new possessory judgment; and alleges, that an interruption of possession ceases by seven years, albeit in the point of right, it ceases not till forty.
The Lords found the interruption stands for forty years, and that no possession thereafter, upon that same ground, could give a new possessory judgment, the possession being interrupted, not only by citation, but by a decreet of removing, which stated the other party in civil possession.
