Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Jo Scot v. Hog
Date: 15 January 1666
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In a case betwixt Jo. Scot, the Sawcer of Edinburgh, and one Hog, found that the principal lands being disponed by a base infeftment, and other lands in warrandice also base, and the acquirer of the lands being in possession thirty or forty years, and thereafter being evicted from him by a decreet; the said acquirer has recourse to the warrandice: though the heritor thereof alleged he could not call for the mails and duties of the warrandice, because he stood infeft in these lands by a public infeftment, holden of the superior, by virtue whereof he and his authors had been thirty or forty years in possession but interruption.
Reply,—The pursuer being infeft, though base, in the principal and warrandice lands, long before this public right, and being in possession of the principal lands long before the defender's right, his possession of the principal must be reputed as possession of the warrandice; and so fictione juris, he being prior both in right and in possession, he ought to have a sentence against the tenants of the warrandice.
The Lords having gravely considered this case, both the importance, difficulty, and inconveniences of it, found, that though the defender's right was public, and clad with possession long before the pursuer's right, yet he ought to be preferred to the mails and duties of the warrandice lands, &c.
