Consent not presumed, when the Deed can be ascribed to another Cause.
Christian Barns v. Helen Young and her Spouse
Date: 12 December 1665 Case No. No 64.
Homologation of an infeftment not inferred by possessing the lands, the possessor having another title.
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Helen Young being provided to the annualrent of 800 merks, and to the conquest, obtained decreet thereupon, against Christian Barns the executrix, who suspends on this reason, That the pursuer was infeft by the defunct, her father, in a testament, in full satisfaction of these provisions.—It was answered, non relevat, unless it were alleged, that the charger had accepted; whereupon it was alleged, Accepted, in so far as she had uplifted the mails and duties after her father's death, and had no other title to ascribe it to.—It was answered, That she had another title, viz. her goodsir had disponed this testament to her father and mother, the longest liver of them two, and the bairns of the marriage, by virtue whereof, as heir apparent of the marriage, she might continue, and uplift, and misken the new infeftment given by her father.
Which the Lords found relevant, unless the other party insist on that allegeance proponed, that the pursuer had pursued, and obtained payment upon the title, bearing ‘in satisfaction.’
