Behaviour not inferred if the intromission can be ascribed to a singular title.
Barclay v. The Laird of Craigivar
Date: 8 January 1662 Case No. No 41.
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Andrew Barclay pursues Craigivar, as intromitter with his father's lands wherein he died infeft, for payment of a debt owing by his father. It was excepted, That any intromission that he had, was by virtue of a comprising deduced against him for his father's debt, for which decreet was obtained against him as charged to enter heir to his father, to which comprising the defender had right. It was answered, That the defender being apparent heir, and having right to the legal reversion of the comprising deduced against himself, the comprised was not expired; and to acquire such a right and possess thereby imports gestionem pro bærede.
The Lords found the exception relevant, notwithstanding of the answer unless the pursuer would allege and prove, that he intromitted with more than satisfied the comprising; and found, that he might as lawfully buy an unexpired comprising as a wadset.
Fol. Dic. v. 2. p. 30. Gilmour, No 14. p. 13.*** Stair reports this case:
1662. January 10—Andrew Barclay pursues the Laird of Craigivar, as representing his father upon all the passive titles, to pay a bond due by his father, and insists against him, as behaving himself as heir, by intromission with the mails and duties of the lands of Craigivar and Fintry. The defender alleged Absolvitor, because if any intromission he had (not granting the same) it was by virtue of a singular title, viz. an apprising led against himself, upon a bond due by his father. The pursuer answered, Non relevat, unless the legal expired; for if the apparent heir intromit within the legal, during which, the right of reversion is unextinct, immiscuit se hæreditati, and it is gestio pro hærede.
“The Lords found the defence relevant, albeit the apprising was not expired, unless the pursuer allege, that the defender's intromission was more than satisfied the whole apprising.
Stair, v. 1. p. 78.
*** The like was found, though the apparent heir had intromitted with more than satisfied the apprising, 26th February 1663, Cuthbert against Munro, No 24. p. 9666.
