In questions between parents and children, who understood to be fiar.
Subject_3 SECT. I.
Right taken conjunctly to parent and child.
Douglas v. Graham
Date: 30 November 1566 Case No. No 37.
Although a tack, set conjunctly to a father and his son, is understood to import the father liferenter of the whole, and the son to succeed to him after his decease; yet the Lords found, that this takes place in no other persons to whom a tack is conjunctly set, however near their relation be.
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In an action of ejection movit be John Douglas in Waldstoun, against Robert Graham of K., the said John lybellit that he had tack and assedation of the said lands of Waldstoun, the time of his ejection, for diverse years to run.—Robert Graham ansrit, That the tack was given to him and his mother, whairfore he could not seek the hail profits, but the half of the ejection only; because the tack appertained to him but for ane half allenarlie, in respect his mother was in possession of the tack for her part, be virtue of the assedation, as well as the said John was.—The perseuar replied, That he was first in the tack with his mother conjunctly; and in such cases he that is first in the assedation has the hail for his lifetime, quia duo in solidum non possunt possidere eandem rem simul et semel, except a man and his wife; and also it was daily seen, that the father being first in the tack with the son, that the father bruiks the hail during his time.—It was answerit, It was not alike in the father and son as in other persons; for in respect that the father is presupponit to prefer himself to his lawful son, and also the son lawfullie gotten to warrand the father's deed; so is not the mother to the son, nor he to her, nor brother to brother, nor no kind of person that are estimate extranean in the law to other, neither to prefer themselves in making or taking such assedations, nor yet in the warrandice thereof; sed unusquisque psssidet pro sua parte pro indiviso; and attour, albeit the ane of such persons as are extraneans to others, that is to say, all others except the father and son lawfully begotten, and air, abstain frae the uptaking of the profits of such assedations, yet it is in their wills to middle therewith at their pleasure, be virtue of the same assedation, which gives them both, or all, equal right and title to the effect foresaid; for the ane of them conjunctly intitulate, taking possession, is as sufficient as if they had both taken possession, in respect that the ane, after the other's decease, intromits but farther solemnitie requisite thereto. The quhilk the Lords admittit, and absolvit fra the half of the profits, in respect of the exception; and fand such assedation to make equal right to them that are conjunctly named in the same, except the father and the son lawfullie begotten, or aires.
