James Cuthbert of Dragacres v. Robert Monro of Foulis
Date: 26 February 1663 Case No. No 24.
Found in conformity with Straiton against Chirnside, No 22. p 9664.
Click here to view a pdf copy of this documet : PDF Copy
The said James pursues the said Robert Monro, as heir to his predecessor the Laird of Foulis, for payment of a debt due by him, and insists against him as behaving himself as heir by intromission with the moveable heirship. The defender alleged absolvitor, because it was not condescended that the defunct was a person who could have an heir as to heirship moveables, as being prelate, baron, or burgess; and, if the lands of Foulis be condescended on, it is offered to be proved, that he was denuded by apprising before his death, to which apprising he had right before he was apparent heir, being tutor to another who was apparent heir for the time; and therefore the defender has neither behaved himself as heir by intromission with the moveable heirship, nor the rents of the defunct's lands. 2do, The defender died rebel and his escheat gifted and declared, and so nibil habuit in se bonis, and could have no moveable heirship. It is answered for the pursuer, to the first, Non relevat, that the lands were apprised from the defunct, unless the legal had been expired, yet semel baro semper baro. 3tio, The pursuer having taken right to the apprising while he was tutor ipso facto, it accresced to the pupil and thereby was extinct, and cannot defend his intromissions. 4to, It was for a small sum and satisfied by intromission of a year or two, so that the continuance of the apparent heir in the possession after he was satisfied is gestio. 5to, The gift and declarator if it was done during the rebel's life, it was simulate retenta possessione, and so null.
The Lords found the apprising not to purge the intromission unless the legal had been expired, in moveable, and his apparent heir might behave himself as heir by intromission with the rents of the apprised lands; but if the legal was expired, they found it sufficient, and that semel baro semper baro is only to be understood presumptive, nisi contrarium probetur; as also they found the defender his taking right to the apprising, while being tutor, or continuing in possession after satisfaction thereof by intromission, not to infer the passive title, and that the gift and declarator did take away the heirship moveable, unless it were offered to be proved simul or retenta possessione during the rebel's life time. See Presumption.
Fol. Dic. v. 2. p. 28. Stair, v. 1. p. 188.
*** A similar decision was pronounced, 22d December 1674, Seaton against Seaton, No 21. p. 5397, voce Heirship Moveables.
