Removing sustained at the instance of a compriser infeft and in possession, although the defender had been infeft before the compriser, and had obtained a clandestine possession.
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In a removing pursued by Lauder contra L. Aitkin, the Lords preferred the pursuer, who had comprised the lands, and was infeft therein by virtue thereof, and conform thereto, in possession year and day, by receiving of the mails and duties of that house comprised from the tenants, possessors to the defender, albeit he defended himself with an heritable infeftment of that house libelled, given to him by him from whom the lands were comprised, before the comprising and denunciation thereof; and that he alleged that he was presently, conform to his said anterior heritable right, in possession of the house; which was repelled, and the pursuer preferred, in respect of his comprising, and possession year and day; and in respect he replied, That the possession which the defender had of the land presently, was acquired by him but only before this pursuit, by entering to the void possession of the house, when the tenant possessor thereof removed at the term; and so being obtained after such a clandestine and unlawful manner, could not be profitable to him against this pursuer, which was so found; neither was it found needful to put the pursuer to any other action of intrusion, thereby to recover his possession; but admitted the same ut supra to be tried in this removing; and the defender also defending himself with the liferent-escheat, and general declarator obtained by him of this same author, of his heritable right, and which was declared before the said comprising and denunciation, and his possession foresaid; this exception was also repelled, in respect of the said reply, and because there was no special declarator.
Act. ——.Alt. Foulis.
Fol. Dic. v. 1. p. 482. Durie, p. 318.
