Possession, how presumed, and what presumed from it.
Subject_3 SECT. II.
Possession of Moveables presumes Property.
Turnbul v. Ker of Cavers
Date: 24 November 1624 Case No. No 283.
Found, in an action of spuilzie, that goods remaining in the possession of a person, and used by him in all respects, are to be presumed his property.
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In an action of spuilzie at the instance of Turnbul of Symington against Ker of Cavers, for spuilziation of certain kine and oxen, which was restricted to wrongous intromission, the Lords found an exception proponed for the defender relevant to elide the action, founded upon a poinding from the Laird of Bedrule, the defender's debtor, of the goods libelled, off his ground; and that the said goods were in the Laird of Bedrule's possession divers years before the poinding, and, at that time, used, by him as his goods, by working of them, and milking of the kine, and that the young goods were bred upon the said lands, being the increase of the said old goods. This exception was found relevant, albeit it was both specially libelled, and also replied for the pursuer, That the goods libelled properly belonged to himself, and were bred by him upon his own proper lands of Symington, and there used by him at his pleasure; and thereafter the same were put by him in grazing to Bedrule, upon the lands libelled, out of the which the same were alleged to be taken and poinded, upon condition that the Laird of Bedrule should have for the grazing thereof, the milk and the first calf; likeas divers others of the young breeding of the said goods were received by the pursuer; and also, how soon he heard of the poinding, viz. within a day or two thereafter, he offered to make faith that the goods were his own. Which reply was not respected, but the exception sustained; seeing the Lords found, That the goods remaining divers years together in the possession of any person, who keeped them upon his own ground, and milked and used them, and the increase thereof, all this time, as his own proper goods, the creditors of such possessors might lawfully poind them as the goods of their debtors who had kept them in their possession as their own goods divers years together; and so this presumptive qualification of property consisting in the retention of possession sundry years, was preferred to the pursuer's offering to prove himself the only true owner of the goods, as being bred upon his own heritage, and sent only in grazing to that person, who is alleged to be the defender's debtor; which reply was not found relevant, seeing the pursuer could not qualify real possession of the goods by the space of two years preceding the spuilzie, albeit he alleged the property of the same to be truly his.
In this process also, the Lords were of the mind, albeit it past not into interlocutor, That steelbow goods, being delivered by the master to his tenant at the setting of any room, after the manner of setting with steelbow, might be poinded by the tenant's creditor for the tenant's debt; and that the master would have only action against the tenants for the steelbow, at the time appointed, for delivery thereof, in respect the steelbow goods, being either corn or cattle, became the tenant's, seeing every year they were changed; and the first which were delivered to the tenant by the master could not probably be extant, in respect of the alteration by the course of years, which alteration made the same to become absolutely the tenant's own, and subject to his debt.
Act. Hart.Alt. Belshes.Clerk, Gibson.
Fol. Dic. v. 2. p. 160. Durie, p. 151.
