A comprising clad with possession, defends from wrongous intromission against a prior right.
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In a spuilzie at the instance of John Ross, he having right made to him by his father the Laird of Graigie, of the teinds of the kirk of Perth set to him during his lifetime, viz. “the father's lifetime, and thereafter for the space of two nineteen years tack to the heirs-male gotten of his own body, which failing, to their heirs-male whatsomever;” to the which tack the father, who was tacksman for his lifetime, primo loco as said is, made the said John assignee, with reservation of his own liferent, and accordingly retained the possession, he surviving divers years thereafter, after whose decease the right of the tack is comprised from his heirs-male by the Town of Perth, who, conform thereto, came in real possession of the teind-sheaves divers years; and the Town of Perth being convened for wrongous intromission, against which they opponing the tenor of the said principal tack, and their comprising, clad with real possession many years together, which they alleged should give them preference to the pursuer's anterior right which never took effect by any possession or intimation of his right, except only by executing of an inhibition twelve years since thereon, whereupon nothing more was prosecuted nor done by him sinsyne, specially seeing they alleged, that the nature and tenor of the tack being set to the father during his lifetime, and the nineteen years tack therein to his heirs-male, therefore that he had no power to dispone upon this nineteen years tack, which was to take beginning after his decease in the person of his heirs male, whom he could not prejudge in his right: The Lords found this exception relevant, and preferred the compriser to the anterior right acquired from the father by the pursuer, as said is, seeing the pursuer had no possession; but this was in this judgment possessory, and to defend the possessor against this pursuit of wrongous intromission.
