Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

Nicol Harper
v.
Colonel Home

Date: 15 January 1662

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Nicol Harper pursues Colonel Home, brother to the deceased Alexander Home of Plenderguest, as behaving himself as heir to him, and successor to him titulo lucrativo; in so far as he intromits with the mails and duties of the lands of Plenderguest, wherein his said deceased brother died infeft. It was alleged by the defender, That he bruiked by a right from William Home of Linthil, who was infeft in the property by the said Alexander. It was answered, and offered to be proven, That Linthil's right and infeftment was to the behoof of the excipient, and so in the same condition as if the right had been immediately granted to the excipient by his said deceased brother; in which case he would have necessarily been successor litulo lucrativo. It was duplied, That though Linthil's right was to the behoof of the excipient, yet it cannot infer, against him, gestionem pro hærede; seeing his brother was legally denuded, and that gestio imports animum adeundi or intromittendi pro hærede. Neither can a right from a mediate person, derived to him, make him successor titulo lucrative to his brother; because, in our law, such a succession is only sustained against a person who is alioqui successurus, as he who præcipit hæreditatem; but, when a right made to a stranger is derived to an apparent heir, his taking thereof cannot be said to be præceptio hæreditatis, the heritage being in the person of him to whom he could not be heir. The Lords assoilyied the defender from the passive titles; but found the right made to the defender made him liable to the debt, according to his intromissions bygone, and in time coming.

No 19, Page 15.