Base Infeftments are preferred to one another, and to Public Ones, according to date, if steps have been taken, sine mora, to attain Possession.
Charters v. L Balmaghie.
Date: 14 February 1633 Case No. No 8.
A person holding a base right, attained possession for some years. A liferenter was preferred to him in the possession for 36 years. A person, in virtue of a public right, then held possession for five or six years. The original bale right being once good by possession, remained so even after 40 years, and was preferred accordingly.
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One Charters pursuing removing against the Laird of Balmaghie, the pursuer being infeft in the lands libelled, as heir to his father, Who was infeft by Alexander Livingston of Airds, above 45 years since, by an infeftment to be holden of the granter, and by virtue thereof was divers years in possession of the land, ay and while the relict of the said Alexander Livingston, being liferenter of the lands, after her husband's decease, by virtue of that her liferent right, became in possession thereof, wherein she continued by the space of 36 years, or thereby, ay and while the time of her decease; after whose decease, immediately, the L. Balmaghie defender, apprehended the possession, and hath continued therein now by the space of five or six years bypast, he being infeft by progress from his predecessors and authors, by five several heritable infeftments, in five several his author's persons, flowing from that same Alexander Livingston, common author to both the parties, and all by public infeftments, to be holden of the superior; whereby it was alleged, That in this judgment possessory, the public infeftment ought to defend against the base right, which was now extinct, being out of possession these 40 years bypast, and so prescribed.——The Lords nevertheless repelled this allegeance, in respect that the pursuer's base right was alleged once to be clothed with possession, whereby it was once a good right, and ought to be preferred to the posterior right, albeit public; and found, That this possession, albeit after so long time, (and albeit tending to destroy the public infeftment with so long progress,) was probable by witnesses, and receivable hoc ordine, without reduction : and found, That the prescription had no place in this case, seeing the desuetude and out-lying of the pursuer out of the possession, was by the liferenter's right and possession, she living, and being possessor above 30 years and more, which suspended both parties rights and possession; that prescription could not run against them medio tempore; and the defender's possession, since her decease, was not sustained to exclude this pursuit. See Proof.
Act. Cunninghame.Alt. Gilmor.Clerk, Gibson.
Durie, p. 672.
