Scottish Court of Session Decisions

Subject_1 HEIR APPARENT.
Subject_2 SECT. II.

Competition about the Possession.

Lord Hawley
v.
Earl of Dalhousie

Date: 11 January 1712
Case No. No 8.

In a competition for the present possession of an estate, betwixt an heir male who possessed it, and an heir of line, who, being out of the kingdom, authorised her agent to take possession, the Lords sequestrated the rents till the issue of the process.

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William Earl of Dalhousie being sent with his regiment to Spain, died there in October 1710. On the news, Mr William. Ramsay, his cousin, serves himself heir-male, not to the said last Earl, but to his father, who died in 1682, conform to the ancient investiture of the family running to the heirs-male. Lady Elisabeth Ramsay, married to my Lord Hawley, observing her brother's infeftment was taken to his heirs whatsomever, she serves herself heir of line to him; and both of them claiming the rents, the tenants are forced to suspend on multiplepoinding, that they may know to whom they may safely pay. The Earl having stept into the void posssession, on his cousin's death, craved to be preferred in hoc judicio possessorio till the point of right be determined. The Lady Hawley contended for preference, in regard she produced her brother's charter and sasine, and instructed he was seven years in possession by virtue thereof, and so had the benefit of a possessory judgment, ay till her right be reduced. Answered, 1mo, An heir cannot found upon the predecessor's possession, unless upon his death they have attained it themselves; but where they are only in acquirenda possessione, they cannot plead a possessory judgment. It is true, an heir may continue their predecessors possession, and if attained, and thrust out, they may demand repossession; but if there be a middle impediment of another's entry to it, it quite cuts the thread of his possessory judgment; but so it is the Lady is but in adipiscenda possessione, and therefore can never be heard to dispossess the Earl; especially seeing the last Earl's title was only an adjudication for a small sum of L. 1900 Scots, which, by his possession, was paid long within the legal, and extinct; and if my Lady will produce it in his reduction and improbation, it will soon appear who has best right. Replied. I am not bound to debate the import of my brother's right in hoc statu processus, but I'll maintain it in its due time; but for the interim I must be preferred in the possession, because I, by a written mandate to Mr Patrick Middleton, desired him to continue my brother's possession: And as for yours, it is not universal, but only partial as to some of the tenants. 2do, It was clandestine and violent in breaking up the gates of Dalhousie tower, 3tio, It is precarious and momentary, not being yet a full year since you were served heir. And the Roman law provided two remedies to heirs for attaining their possession; the first was in l. ult. C. de edicto Divi Adriani tollendo, where the hæres in testamento institutus is yet in possession, notwithstanding of other competitors; the 2d is the interdictum quorum bonorum, so called from its initial words, where the prætor gives the hæres ab intestato the possession; all which favour the heir of line's case. Duplied, It seems very incongruous to put the Lady in possession, who, within a few months, on discussing her right, must just cede it, and give it back again to the Earl. So the interdict uti possidetis ita possideatis must take place here; and her missive letter is neither a factory, nor does it prove the date it bears.——The Lords were somewhat divided; but the plurality seemed to incline to sequestrate the rents during the dependence, and till the event of the Earl's reduction, and so would give neither of them the prerogative of the possession during the interim, till it was known on whose side the right lay.

Fol. Dic. v. 1. p. 357. Fountainhall, v. 2. p. 702.