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Sir Henry Home v Sir Alexander Home. [1666] Mor 1312 (14 June 1666)
URL: http://www.bailii.org/scot/cases/ScotCS/1666/Mor0301312-045.html Cite as:
[1666] Mor 1312
Whether a Father's possession validates a base right in favour of his Son.
Sir Henry Home v. Sir Alexander Home
Date: 14 June 1666 Case No. No 45.
Found in conformity with No 43. p. 1311.
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In the cause between these parties, Stair, v. 1. p. 375. voce Possessory Judgement; it was further alleged, for Sir Alexander Home, That the rebel had not only five years possession, but was infeft by an infeftment holden of his father, which was clad with possession, before the apprizer's charge against the superior; in so far as the infeftment bore a reservation of the father's liferent; and so the father's possession was the rebel's possession, and was sufficient to validate the base infeftment; seeing there could be no other possession attained, during his father's lifetime; or at least, there was reserved to the father an yearly rent, and the rebel gave his father a warrant in writ to continue his possession, of such of the lands for the same.
The Lords ordained the donatar to condescend, whether the rebel's infeftment proceeded upon his contract of marriage; and he declaring that it was by a distinct right, thereafter,
The Lords found the possession of the father not relevant, it being betwixt conjunct persons, private, and suspect: For they thought, if possession by such reservation, betwixt father and son were sufficient, the creditors would hardly be secure.
