What title requisite. - What time requisite. - Connection of possession.
Sir Henry Home v. Tenants of Kello and Sir Alexander Home
Date: 13 June 1666 Case No. No 7.
Forfeiture and five years possession were not found relevant to give the benefit of a possessory judgment, by exception or reply, without a retour by an inquest.
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John Home younger of Kello being forfeited in the Parliament 1661, for being with the English army against the King's army at Worcester 1651, Sir Alexander Home obtained gift of the forfeitry and thereupon came in possession. Sir Henry Home having apprised the lands of Kello from the said John Home and his father Alexander Home upon their bond, and having charged the superior in 1653 to infeft him, obtained decreet of mails and duties against the tenants; which being suspended upon double poinding, and Sir Henry and Sir Alexander competing, it was answered for Sir Alexander, the donatar, That he had possessed three years, and offered him to prove, that the rebel had possessed five years before, therefore craved the benefit of a possessory judgment; 2dly, That he was preferable in point of right, in so far as he offered him to prove that the rebel was five years in possession before the forfeiture, which gives the King and his donatar complete right by the act of Parliament. It was answered for the Creditor, That he ought to be preferred, because there being no retour upon the act of Parliament, finding by the inquest that the rebel was five years in possession as heritable possessor, he can neither have the benefit of a possessory judgment nor stop the creditor's diligence, who found themselves upon the apprising against the father who stood publicly infeft, and there is no sufficient right in the rebel's person alleged nor produced. It was answered. That the five years possession might be proved by witnesses by way of exception; 2dly, It was offered to be proved by an inquest conform to the act of Parliament.
The Lords found no benefit of a possessory judgment competent; neither would they sustain the five years possession by way of defence; but decerned, superseding extract until the 15th of July, within which time, if the donatar obtained the retour of an inquest, he should be heard thereupon.
The donatar further alleged separatim that the rebel was infeft by the father, which was sufficient to prefer him without an inquest. It was answered, Non relevat, unless he had been either publicly infeft, or by base infeftment clad with possession, before the superior was charged upon the creditor's apprising, which being equivalent to a public infeftment, is preferable to the rebel's base infeftment. It was answered, That the King or his donatar needed no possession, nor can be prejudged for want of diligence.
The Lords found the creditor's allegeance relevant.
