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Scottish Court of Session Decisions >>
Carstairs of Radernie v Stewart of Dunearn. [1734] Mor 11633 (30 July 1734)
URL: http://www.bailii.org/scot/cases/ScotCS/1734/Mor2711633-308.html Cite as:
[1734] Mor 11633
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An assignee to a liferent-right having been long in possession, was pursued to remove, upon the presumption that the liferentrix was dead, she not having been heard of for 60 or 70 years backward. The defender admitted, were he insisting for possession upon his liferent-right he must prove his libel, viz. the existence of the liferentrix. But he contended, That, having once legally attained possession, he has nothing further to prove; his possession must continue, and the person who brings a process of removing against him, must prove that the right is at an end by the death of the liferentrix; and therefore, though in dubio the presumption of 50 or 60 years might take place as the most ordinary period of life, the question here does not turn upon the preponderating presumption; the pursuer cannot prevail unless he prove his libel, which must be done one of two ways, either by a direct proof of death, or by the lapse of such a time, after which its past all human probability that the person is alive. The Lords found, That the pursuer not offering to prove the Lady's death, the presumption in law is for life to 100 years. See Appendix.
