Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VII.
Whether a preferable infeftment without interpellation will induce mala fides.
Monypenny v. Tenants of Lumbenny
Date: 9 March 1624 Case No. No 27.
A party possessing without interruption by virtue of a posterior infeftment, pursued by a party having a prior infeftment, is safe quoad præterita before the interruption, as being fructus bona fide percepti et consumpti.
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In an action pursued by William Monypenny, against the Tenants of Lumbenny, for payment to him of the duties and farms of the lands, since the date of his infeftment, which was in anno 1609, continually unto the date of his summons, which was in anno 1622, by the space of 12 years; the defenders were assoilzied, because they were infeft in the same lands in anno 1609, for payment of a blench duty allenarly to him, who was common author to both the parties; which infeftment, albeit it was after the pursuer's right, yet being clad with continual possession, and never being interrupted by the pursuer since the date thereof, before the intenting of this late pursuit, was found sufficient by the Lords to defend them, and to constitute them in bona fide, to bruik the said lands all the years preceding the date of this summons, free of payment of any other duty, except allenarly the blench-duty contained in their infeftment, and found this exception relevant to elide the pursuer's action, notwithstanding of his prior right, whereupon no diligence nor interruption was made to the defenders, which might make them subject to pay any other duty, than that which was insert in their infeftments.
Act. ——.Alt. Chaip.Clerk, Scot.
Fol. Dic. v. 1. p. 109. Durie, p. 118.
