Behaviour not inferred if the intromission can be ascribed to a singular title.
Thomas Ogilvy v. Lord Gray
Date: 17 July 1666 Case No. No 42.
The condescendence of behaviour as heir, by intromission with the mails and duties, was elided, the apparent heir having possessed by a warrant from the donatar of recognition; for, although that was not a proper title to posses, yet it shewed the animus of the heir not to behave as heir.
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Thomas Ogilyy pursues the Lord Gray, as behaving himself as heir to his father, by intromission with the mails and duties of the lands wherein his father died infeft, as of fee, for payment of a debt of his father's; who alleged Absolvitor, because any intromission he had, was by a warrant and tolerance of Sir George Kinnaird, who stood infeft in the lands upon a gift of recognition, It was answered, Non relevat, unless the gift had been declared before the defender's intromission; because the gift would not have given right to the donatar himself to possess. The defender answered, That the gift was declared before the intenting of the pursuer's cause, which declarator, albeit after intromission, yet must be drawn back to the gift, to purge the vitiosity of the defender's intromission, in the same way that the confirmation of a testament will purge anterior vitious intromission, the confirmation being before the intenting of the cause.
“The Lords found the defence relevant to elide the passive title, seeing any colourable title is sufficient to excuse the vitiosity; but did not find that the declarator, before intenting the cause, had the same effect as a confirmation; because, by constant customs, such confirmations purge the preceding vitiosity; which has never yet been found in this case of an heir's intromission with the rents of lands; but the Lords found the defender liable for the single value of his intromission.”
Fol. Dic. v. 2. p. 30. Stair, v. 1. p. 397.*** Newbyth reports this case:
Thomas Ogilvy pursues the Lord Gray, as lawfully charged to enter heir to his father the Master of Gray, for payment making to him of the sum of 9,000 merks principal, with the annualrent and expenses. It was alleged for the defender, That he was content to renounce. It was replied, He could not renounce, because the pursuer offered him to prove, that the defender had intromitted with the plenishing of the house of Fowlis, and other moveables upon the Mains; and, with the mails and duties of the lands wherein his father died infeft, upon which last member the pursuer declared that he insisted. To which it was duplied, That any intromission the defender had was by virtue of a warrant from Sir George Kennedy, who was donatar to the gift of recognition of the lands and barony of Fowlis; whereunto it was triplied, That the gift cannot purge the intromission, because the defender, or some other to his use, did intromit long before the gift of recognition of the lands and barony of Fowlis, at least before declarator. To which it is answered, That the defender was content to find the first part of the allegeance relevant; and, as to the second, that he had intromitted before declarator, yet being after the gift, the same ought to be drawn back to the date of the gift; just as a donatar to a liferent escheat, who intromitted before declarator by virtue of his gift, and the subsequent decreet of declarator will be drawn back to the date of the gift, ad hunc effectum to purge and free him of any vitious intromissions; and the like in a confirmation in a defunct's testament, which will purge being within year and day. To which it was replied, That the defender's intromission cannot be drawn back to the date of the recognition, but the same ought to import a behaviour; because there is a great difference in law betwixt a gift of ward and non-entry, and a gift of escheat and a gift of recognition; for it is not denied, but a donatar to a gift of ward may pursue for mails and duties, and for removing; and a donatar to escheat may intromit with goods and gear belonging to a rebel, even before a declarator; and the reason is, because, in all the gifts, the donatar's right is clearly proved by writ, and the decreet following thereupon is but juris, and not facti, against which, hardly any thing can be objected that can extinguish the donatar's gift in toto; whereas, recognitions being founded upon the vassal's proper delict and contempt of his superior, by disponing the greatest part of the feu holden ward of him without his superior's consent, there is a necessity for the donatar, not only to allege that, but to prove so many deeds done by the vassal, by granting disposition and infeftment as may infer the recognition craved; which deeds of the vassal being facti must abide probation, and the event is dubious, wherein possibly the donatar may succumb, and his gift prove ineffectual; and therefore, unless the defender allege, that there is not only a gift of recognition, but a subsequent declarator obtained thereupon, upon probation of so many deeds done by the Master of Gray, as may conclude the gift of recognition, alleged on the defender's intromission had before declarator, must import a behaviour as heir; which he cannot do, there being no such declarator yet obtained, but allenarly an act of litiscontestation and circumduction of the term against some of the defenders, called in the recognition, neither was the probation renounced, nor the cause advised, nor the parties heard, why the deeds and dispositions granted by the deceased Master of Gray, did prove the recognitions craved; neither was the rental of the barony of Fowlis proven, or that there were so many deeds proven as would make up a disposition of the greatest part of the said barony, holden ward, as said is; till all which be done, the donatar had no complete right in his person, to intromit or grant licence to this defender as apparent heir to intromit; but his intromission ought to import a behaviour as heir. The Lords found the allegeance proponed for the Lord Gray relevant, to free him from that odious passive title libelled, of behaving as heir; but found, that he ought to be liable to the pursuer in quantum he had intromitted, to make the same forthcoming to him.
