Found in conformity with Bailie against Home, No 13. p. 9638.
In this case, the apparent heir continued in possession of the heirship for two years without making inventory.
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Gilbert Johnston, and Mason, his spouse, convene Mason, as behaving himself as heir to his umquhile father by intromission with his heirship goods, to make payment of a sum of money promitted to them by his father in tocher; in the which cause, the defender alleged, that he could not be convened hoc nomine, as intromitter with the said heirship goods, to make him heir, because he being infeft by his umquhile father in a tenement of land, before the contract of marriage libelled, after the decease of his father, he removed the relict and entered to the possession of that tenement, within the which the said heirship goods were then standing for the time, and which he could not cast out, but suffered the same to remain in the house, where they are yet extant, to be forthcoming to the pursuer, or any other having interest in the same; and except he had sold and disponed thereupon, or had made some other use of them, than by retaining of the same in the house, he cannot be therefore convened, as thereby behaving himself to be heir. This allegeance was repelled, and the retaining of the possession of the said goods, and using of the same, by eating on the boards, and lying on the beds, was found sufficient; neither was it found necessary, that the pursuer should reply upon the defender's selling or disponing of the heirship, seeing his retaining thereof, and using of the same, as said is, was found enough; for if he had pleased to evite the danger of being heir, he had his ordinary remeed to have meaned himself to the Lords, and to have obtained a warrant to make inventory of the goods within the dwelling-house foresaid, before he had entered thereto, to have been forthcoming to all parties; which not being done, he has prejudged himself, especially seeing it was offered to be proved by the pursuer, that there are two years past since his father's decease, during the which whole space, he has retained the possession of the said goods.
Clerk, Gibson.
Fol. Dic. v. 2. p. 27. Durie, p. 218.
