Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND.
Subject_2 Such of the following Decision as are of a Date prior to about the year 1620, must have been taken by Spotiswoode from some of the more early Reporters. The Cases which immediately follow have no Date affixed to them by Spotiswoode.

Colonel Stuart
v.
The Tenants of Houston

1591.

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Colonel Stuart, cessioner and assignee constituted by John Steil to his liferent of the lands of Houston, warned certain tenants to flit and remove. Excepted, That they had tacks for terms to run, from them who had right to set them, viz. Mr John Sharp, who was heritable proprietor of the said lands, and who had been in possession of them, he and his authors, for the space of thirtyeight years. Replied, That any infeftment Mr John or his authors had, the same proceeded from Matthew Hamilton of Milburn, unto whom the cedent John Steil disponed these lands, with reservation of his own liferent; and so Mr John or his authors could be in no better case than he to whom the first alienation was made. Duplied, That, according to the common law and daily practice, the defenders and their authors, being so long in possession by virtue of titles standing unreduced, without any reservation of liferent, they could not be compelled to enter in question of their rights and titles, but behoved gaudere privilegio interdicti, uti possidetis. To all this it was answered, That Mr John Sharp could never be heard to say against the reserved liferent of John Steil in Matthew Hamilton's infeftment; because he had used the said infeftment judicially, and had obtained decreet and sentence by virtue thereof, in so far as the Lords had decerned a reversion given by John Hamilton of Shawton, (who was author to Matthew,) to appertain to him, tanquam jus superveniens et quod accreverat Mi, because he had bought the lands. And so, having both judicially confessed the said liferent, and having allowed the infeftment whereinto it was reserved, and having also reported commodity by virtue thereof, he behoved, ex necessitate, to abide by the same, and consequently to fulfil the reservation of the liferent specified therein. The Lords, in presentia regis, admitted the exception qualified with the thirty-eight years possession. Nonnulli DD. contra.

Page 280.