Apprisings and Adjudications with Voluntary Rights.
Robertson v. Brown
Date: 11 July 1637 Case No. No 62.
Decided in conformity with No 59. p. 2818.
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One Robertson being infeft in a tenement in Perth, in March 1637, by resignation made by James Brown, which James was infeft therein upon the 4th of July 1631, conform to a preceding disposition of that land, made to him by Gilbert Brown heritor of the land, dated February 1st 1631, pursues removing against Patrick Brown, who was infeft in that same tenement, upon the 5th of July 1631, a day or two after the sasine taken by the said James Brown, the pursuer's author, the defender's sasine depending upon a comprising, deduced against the said Gilbert Brown at his instance; the denunciation of which comprising was in June before the sasine given, and taken by James Brown, upon his right made to him by Gilbert; albeit the comprising and sasine was not perfected, but within a day or two of James Brown's sasine, yet he contended he had sufficient right to bruik the lands, in respect of his foresaid exact diligence done legally, and that he had served inhibition upon the 2d February 1631, against the said Gilbert, whose voluntary disposition, done only one day before his inhibition, ought to prejudge the defender; seeing the said Gilbert Brown, common author, and James Brown receiver of the disposition, were, and are, both bankrupts, the disponer still continuing in possession, and there being nothing to qualify any real debt, owing to him by the said James Brown: so that he alleged, that his sasine upon his comprising, albeit a day or two only expede after the said James his sasine, ought to be drawn back to the time of his denunciation, and ought to defend him in his possessory judgment, seeing he offered to prove, that the common author retained possession of the land, notwithstanding of the disposition made by him, continually while the excipient removed him by order of law, viz. in October 1632, at which time the excipient became in possession, wherein he was continued ever since unto the time of this plea. And the pursuer replying, that his right ought to be preferred in respect in his sasine, preceding this defender's sasine; which prior sasine of his depends upon a disposition preceding the excipient's denunciation; and albeit both receiver and disponer were bankrupts, yet that ought not to prejudge this pursuer, who for most onerous causes had acquired the right, and knows nothing of what proceeded betwixt his said authors. The Lords repelled the exception, and preferred the pursuer, in respect of his author's first sasine and first disposition, and found the denunciation of the comprising, was no impediment to the acquirers of the disposition, to take a sasine conform to the said disposition which preceded, the denunciation, and also the inhibition, or even after the said denunciation, the same depending upon a preceding cause; neither respected the Lords that both the disponer and acquirer were bankrupts, seeing this pursuer who had acquired this right, albeit lately, yet the same was for an onerous cause, and he was never qualified, nor alleged to be partaker of any fraud with his authors; and the possession was not respected, seeing it was but a possession of five years, which is not receivable to maintain any right in itself, nor sufficient against the pursuer's right, wherefore the pursuer was preferred, as said is. See Bankrupt.
Act. Hepburn.Alt. Oliphant.Clerk. Hay.
Fol. Dic. v. 1. p. 182. Durie, p. 850.
