Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. II.
What sort of possession requisite.
Montgomery v. Home
Date: 22 July 1664 Case No. No 14.
After decree of removing, which stated the pursuer in the civil possession, the defender continuing to possess seven years without interruption, was not found to have the benefit of a new possessory judgment.
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William Montgomery pursues Alexander Home to remove, Who alleged, Absolvitor, because he stands infeft, and by virtue thereof in seven years possession, and so hath the benefit of a possessory judgment. It was replied, That, before any such possession, a decreet of removing was obtained against the defender, which made him mala fide possessor. It was duplied, That since that decreet, which was in absence, the defender had possessed it seven years without interruption, which acquired the benefit of a new possessory judgment; and alleges, that an interruption of possession ceases by seven years, albeit in the point of right, it ceases not till forty.
The Lords found the interruption stands for forty years, and that no possession thereafter, upon that same ground, could give a new possessory judgment, the possession being interrupted, not only by citation, but by a decreet of removing, which stated the other party in civil possession.
