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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Pollock v Anderson. [1663] Mor 10634 (17 January 1663)
URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor2510634-025.html
Cite as: [1663] Mor 10634

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[1663] Mor 10634      

Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. IV.

Effect of a Possessory Judgment.

Pollock
v.
Anderson

Date: 17 January 1663
Case No. No 25.

The Lords refused to receive a reason of reduction, nor would they receive the summons incidenter, against an heritable right, by virtue of which the defender had been seven years in possession.


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The deceast John Anderson, by his second contract of marriage, is obliged to provide his conquest to the heirs of that marriage; and he conquests a room to himself in liferent, and William the eldest son of the first marriage in fee; whereupon they are both infeft by charter and sasine flowing from the Marquis of Douglas, from whom the land was purchased. The said John being debtor in a bond of L. 1000 to Arthur Pollock, who charged Christian Anderson to enter heir to her father William, who was successor titulo lucrativo post contractum debitum to his father John, in so far as the land was thereafter purchased to his father in liferent, and to his son in fee; and therefore the said Arthur having pursued the said Christian ut supra, it was alleged, That William the son was not successor titulo lucrativo to his father, because the charter grants the receipt of the price from his son; and the reason why the father was life-renter was, because he had a prior rental standing in his person, who, conform to the charter, paid the feu-duty to the Marquis superior; likeas, it was offered to be proven, per testes omni exceptione majores, that the son did de facto pay the price. It was answered, That the father, being liferenter, must be presumed to be purchaser.

The Lords found the allegeance relevant, notwithstanding of the reply.

And it being proven, both by the charter and famous witnesses, that the son being major paid the money;

They assoilzied the defender from the passive title.

And because it was alleged, That the sasine was given by the father to the son only propriis manibus, without an adminicle, though confirmed by the Marquis, the original charter being, in the first place, given to the father heritably, and in the same charter mention being made of a resignation made by the father, in favours of himself in liferent, and his son in fee, for sums of money paid to the superior by the son, which resignation was not shown;

The Lords nevertheless sustained the infeftment, clad with the above seven years possession, reserving action of reduction as accords of the law.

Fol. Dic. v. 2. 89. Gilmour, No 66. 49.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1663/Mor2510634-025.html