Whether a Father's possession validates a base right in favour of his Son.
Lord Newbeath v. Dunbar of Burgie
Date: 18 December 1666 Case No. No 46.
Found again that a father's possession, on a reserved liferent, did not validate a base right of the fee granted by him to his son.
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The Lord Newbeath having right from James M'Ken, who had apprised the lands of Burgie, pursues reduction and improbation against young Burgie and John Watson; and insists on this reason, that any rights they have are null, and fraudulent, being contracted after his debt; and the right granted to young Burgie is null, as being but a base infeftment, not clad with possession, before the pursuer's public infeftment. The defender alleged, that his infeftment was clad with possession, in so far as his father's liferent was reserved thereby, and his father possessing by virtue of the reservation, did validate his infeftment. 2dly, Albeit the father's own possession could not be sufficient, yet the father having transmitted his right to Watson, and Watson possessing, the suspicion of simulation ceased; and there is a disposition produced by the father to Watson, which though it bear to be of the fee, yet can import no more, but to be of the liferent, seeing the father had no more; neither needs it have an infeftment, seeing it hath but the effect of an assignation to a liferent. It was answered, that if the father had expressly assigned his liferent, reserved in the base infeftment, it might have been the ground of a question, whether the assignee's possessing so, would have validate the base infeftment? But since the father has not taken notice of the reservation, but dispones as heritor, it clears that he did not possess by the reservation, but by his own prior right.
The Lords found the reason of reduction and reply relevant; and that the father's possessing by himself, or Watson's possessing by himself, could not validate the base infeftment.
