Effect of possession, by tolerance, in competition between a public and a base right.
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Alexander Maxwell having comprised the lands of Wringly, from Ker of Redpath his debtor, in January 1632, and being thereupon infeft by public infeftment upon the 2d of March that same year, and pursuing for the mails and duties of these lands, James Wright the defender alleging a prior infeftment in anno 1630, granted to him to be holden of the granter, viz. the said Ker of Redpath, for most onerous and just causes, which, albeit base, yet was for a true and just debt, and done in anno 1630, long before this party's public right, by virtue whereof he alleged and claimed preference in respect of anteriority, and that he had become in possession of the lands by virtue of his right, by putting one of six score of sheep and sixteen kine, and some yeld goods of his own proper goods, and by conducting and hiring of herds for keeping of them and paying the herds their fees; and it being a grass-room, this should be found sufficient possession, for whatever corns were thereupon, he could not have more possession than of the grass, seeing before the acquiring of his right the corns were sown on the ground, so that he could not have any other possession of labouring; likeas, when he put on his goods, as said is, his debtor being, then possessor, he removed off all his goods and sold and disponed, thereupon, and made the ground void and redd to the defender, and the next year he arrested in the tenants' hands their farms, and obtained thereupon decreet against them which is all the diligence that could be done, seeing this pursuer hadneither done diligence nor recovered any possession by virtue of his public right; this allegeance was repelled, and the pursuer's' right upon the comprising sustained and preferred to the excipient's prior base right, in respect that the pursuer offered to prove, that Ker of Redpath, their common debtor, remained in continual possession of the whole lands notwithstanding of the excipient's right, continually to the time of his comprising, and had his own goods pasturing thereupon and whatever alleged goods the defender had thereupon, the same cannot be ascribed as a possession to maintain his right, seeing he had the like possession by tolerance, or only by oversight, from Redpath divers years before; so that he continuing that same possession which he had before only in tolerance, as said is, cannot be ascribed to his infeftment; likeas he did nothing upon his infeftment to make the same subsist in law before the pursuer's comprising and infeftment, as he ought; for he might have made warning to the debtor, his author, or to the tenant to remove against the next Whitsunday, which he did not; and his arrestment and decreet cannot be respected, being all after his public right, and so can derogate nothing to the pursuer; this reply was sustained to prefer the public right, albeit no more was done upon the said public right before this pursuit.
Act. Nicolson & Dunlop.Alt. Gilmore.Clerk, Gibson.
Durie, p. 786.
