A person in possession by a voluntary deed cannot invert this possession, in prejudice of the Granter. The same holds with regard to legal Disponees.
Blackburn v. Gibson
Date: 25 March 1628 Case No. No 64.
A tenant having comprised the lands which he possessed, was not allowed to attribute his possession, after his tack was expired, to the comprising, in competition with a prior comprising, quia nemo potest mutare causam suæ possessionis.
Click here to view a pdf copy of this documet : PDF Copy
In a removing by Peter Blackburn contra William Gibson, the Lords found a tack set to the defender, by the common debtor to both the parties, six days before the denunciation of the land set in tack, and upon which denunciation comprising was deduced, which comprising was the pursuer's title in this pursuit, to be a sufficient right to elide this pursuit, albeit the tacksman had not apprehended possession, before the denunciation and comprising, seeing it was set to the defender, for a just and true debt owing before, in satisfaction whereof the tack was set, and that no diligence was done by the pursuer against the said common debtor, before the setting of the said tack, which might hinder the excipient to take the said assedation, or the other to set the same; and in respect the said tack was clad with possession, diverse years before the intenting of this removing, upon February 4th 1626, after the tack here mentioned, was expired, this same compriser upon a warning then made, seeking removing; the Lords found, that the defenders allegeance upon a comprising, after the pursuer's comprising, three months deduced, within the time of his tack, could not defend against the prior comprising, notwithstanding of the possession had by the defender, which they found could not be ascribed to the comprising, as the defender would, seeing it was apprehended by the tack, after the expiring whereof he could not mutare causam suæ possessionis, in prejudice of the pursuer's prior comprising, et sic in prejudicium alterius, the prior compriser having done diligence; for the first warning made by him was an argument thereof, albeit it took no effect, by reason of the tack, and which the Lords sustained, seeing it was made before the defender's comprising; neither was it respected, that the defender alleged the denunciation to have preceded the warning, and so would have ascribed the continuing of his possession to the comprising, which was repelled as said is.
Act. Mowat.Alt. Cunningham.Clerk, Gibson.
1629. January 30.—An exception upon a comprising clad with possession diverse years before the warning, was not sustained against a removing founded upon a prior comprising, seeing the excipient's possession, which he had before the warning, was by virtue of a tack, which he had then standing, and before the warning the tack was expired; after the expiring whereof albeit he continued his possession, yet the same cannot make his second comprising to prevail against the prior, he acquiring no possession legally, by virtue of his comprising, but continuing that which he had by virtue of the tack before. See Tack.
Act. ——Alt. Gibson.Clerk, Hay.
Fol. Dic. v. 1. p. 598. Durie, p. 370. & 420.
