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Scottish Court of Session Decisions >>
Arkinleys v Campbell of Glencaradeal. [1669] Mor 5234 (12 November 1669)
URL: http://www.bailii.org/scot/cases/ScotCS/1669/Mor1305234-004.html Cite as:
[1669] Mor 5234
Entitled to continue the Predecessor's Possession.
Arkinleys v. Campbell of Glencaradeal
Date: 12 November 1669 Case No. No 4.
Found in conformity with Inglis against Kellie, No 2. supra.
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In a removing pursued at Arkinley's instance, as having right to a gift of forfaultry of his father's escheat whereupon he was infeft, it was alleged for the defenders, that they bruiked by virtue of tolerance from Campbell of Kilberry, who was apparent heir to his goodsire, who was heritably infeft in the lands libelled, and by virtue thereof had been seven years in possession. It being replied that the tolerance behoved to be proven scripto, at least that the apparent heir had continued in his goodsire's possession, without which having no title in his own person, nor possession, his right as apparent heir could not defend; it was duplied, that the pursuer's having —— in these lands, in the gift of forfaulture, whereby neither the person forfaulted, nor any of his predecessors, were ever in possession; the apparent heir now compearing, and defending upon his predecessor's right, and concurring with the defenders, they had good interest to propone the foresaid allegeance, seeing an apparent heir quocunque tempore may defend, and enter to the possession of his predecessor's lands, against a person who can allege no possession either in his own person or his authors. The Lords sustained the defence and duply, the apparent heirs goodsire's poossession being proven.
Fol. Dic. v. 1. p. 357. Gosford, MS. No. 202. p. 81
