What title requisite. - What time requisite. - Connection of possession.
Ker of Littledean v. Pringle of Stitchel
Date: 25 January 1662 Case No. No 5.
Possession as part and pertitient for 40 years being proved, the defender in a removing, was assoilzied, and it was reserved to the pursuer to bring a declator of property.
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Andrew Ker of Littledean pursues a removing, against Robert Pringle of Stitchel, from the lands of Lurgiecraig, as a part and pertinent of the lands of Newthorn. It was excepted, That the said lands were a part and pertinent of the the lands of Purdie's Mull; and so bruiked by him, his authors and predecessors past memory; and Which lands of Purdie's-Mill were acquired by a number of authors, who held the same of the house of Borthwick. This exception being admitted to probation, there were witnesses adduced, who proved, That the defender, his predecessors, and authors, had possessed the lands past forty years, as part and pertinent of Purdie's-Mill; but the infeftment produced by the defender, did not prove the lands to be holden of the Lord Borthwick, but of the Earl of Home. The time of the advising of the cause, it was alleged by the pursuer, That the allegeance was not proved, viz. that part thereof bearing, That the lands holds of the house of Borthwick. It was answered, That there was sufficient probation ad victoriam causa; to wit, that the lands were possessed as part and pertinent of Purdie's-Mill; and it was superfluously alleged, and not profitable nor necessary to be proved, of whom holden. It was replied, That the pursuer finding the allegeance so strong, and knowing that he could not prove the samen as it was conceived, he suffered the same to be admitted to the defender's probation; whereas if it had been otherways, he would have taken him away with a reply, viz. that he Would have offered him to have proved. That the defender's author, after that he was denuded of Purdie's-Mill, possessed Lurgiecraig as tenant to the heritor of Newthorn: That there is a muir proper to Newthorn, interjected betwixt it and Purdie's-Mill: That it lies in a several parish; and that the pursuer's author acknowledged under his hand, that Lurgiecraig was a part of Newthorn. It was duplied, That this was competent the time of litiscontestation; and the defender has fully proved, that Lurgiecraig has been possessed past memory by the heritors and tenants of Purdie's-Mill, as a part and pertinent thereof.
The Lords having considered the depositions, and having found that they fully proved the possession as a part and pertinent past forty years, they assoilzied the defender ab hoc judicio possessorio; and yet, in respect of the reply omitted bona fide, Which the Lords thought not fit now to discuss post canclusionem in causa, they reserved action of declarator of property to the pursuer, and the defender's defences against the same, as accords; and if the pursuer pleased, gave him liberty to turn his removing into a declarator.
