Whether a Father's possession validates a base right in favour of his Son.
E Annandale v. Johnston
Date: 29 March 1636 Case No. No 44.
A person infeft his grandson, to hold base, reserving his own liferent. He afterwards sold the lands; in which the purchaser was publicly infeft. The grandson, although he afterwards attained possession, was decerned to remove.
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In a removing, one Johnston of —— having infeft his oye in the lands of ——— by a base infeftment, holden of himself, reserving his own liferent; and thereafter the goodsir having made disposition of the lands to the Earl, and upon his resignation he being publicly infeft by the King, and becoming thereafter in the goodsir's lifetime in possession of the lands; while that after the goodsir's decease, and in the absence of the Earl, the oye by virtue of his base infeftment apprehends possession; by virtue of which right and possession he defends against the removing, pursued against him by the Earl, and alleges, That no possession acquired by the Earl in his goodsir's lifetime can prejudge his right, which albeit base, is clothed with natural possession, and the possession of his goodsir must be his possession, his liferent being reserved in his fee.—The Lords repelled the allegeance, in respect of the pursuer's reply upon a public right, clothed with possession in the granter's lifetime, and that the excipient's right was base, and was granted by the goodsir to the oye; and there was no lawful manner qualified, how he apprehended possession; but he might be decerned as succeeding in the vice; and so he was decerned to remove notwithstanding of that exception.
Act. Advocatus.Alt. Johnston.Clerk, Scot.
Durie, p. 809.
