A right acquired by an heritor to his teinds, will not defend him in a possessory judgment against a tenant in possession, though the right of the heritor be prior in date.
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The Earl of Errol as Tacksman of the teind-sheaves of pursuing spuilzie against Gordon of and he defending with right of a tack set to Gordon of Pitlurg long anterior to the pursuer's tack, and by virtue thereof; alleging, That the right of that tack, which was now assigned to the excipient, and by virtue whereof he was in possession, ought to defend him against the spuilzie intented upon a tack, long posterior to the excipient's author's tack; and; the pursuer replying, That he by virtue of his tack, he was in possession of the teinds libelled, diverse years preceding; the years libelled; like as, he has recovered sentence against the defender's author, for spoliation of the said teinds, diverse years preceding the said years libelled, and payment conform thereto; so that in this possessory judgment, the defender cannot obtrude the said anterior tack to this pursuer's tack, which is clothed with twenty years continual possession: The Lords repelled the exception, in respect of the fore said reply and possession, which they admitted in this judgment possessory, without prejudice to the defender to reduce upon his anteriority, prout de jure.
Act. Stuart &Hay.Alt. Burnet.Clerk, Hay.
Fol. Dic. v. 2. p. 90. Durie, p. 810.
