Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. V.
Possession upon a right good ex facie, although liable to objections.
Hume v. La Hadingtoun.
Date: 2 December 1635 Case No. No 19.
A father had put a creditor in possession of lands belonging to his son, for whom he was administrator. Bona fide consumption was sustained to the creditor till the son's right was intimated.
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George Hume, son to Sir George Hume of Manderston, being infeft in the lands of Slegden, pursues the Lady Hadingtoun for payment of the duties of the saids lands, for some by past years; and she alleging, that the had lent 5000 merks to the purser's father, for the profit and security whereof his father put her in possession of the lands, conform whereto she uplifted the duties thereof the years by-past, now acclaimed, and received acquittances thereupon from the father, who is, in law, administrator to his son, the son being for these years minor, whereby for these bygones she must be liberated, having done that bona fide, the son's right never being intimated to her; and the father having purchased the right of the lands himself, without putting the son's name in the security, to whom also he was administrator in law, which gives him right to intromit with the son's estate. And the pursuer answering that his father, albeit he were administrator, yet by that title he can have no right to meddle with the rents, especially to convert the same for payment of his own debt, which is not in law admissible; so that the defender hath her action of warrandice, or other pursuit, against the father, as in law may be best competent to her for repetition thereof, or for recovery of her debt; but it cannot defend her against this pursuit.—The Lords found this defence sufficient to exclude the pursuer from seeking of these bygone duties, which were intromitted with by the defender by warrant of the father, he being in law administrator to his son, who was minor all the years libelled, and was minor the time of the acquiring of the right to the lands libelled; so that these being fructus præteriti & percepti, & bona fide consumpti, and not interrupted before the uplifting thereof; The Lords found, the defender ought to be assolilzied from bygones.
Act. ——.Alt. Stuart & Belshes.Clerk, Gibson.
Fol. Dic. v. 1. p. 108. Durie, p. 781.
