Possession of the Principal Lands held to be Possession of the Warrandice Lands.
Mr John Forbes v. Innes
Date: 20 February 1668 Case No. No 53.
In this case, the infeftment of warrandice was granted ex intervallo, and not at the same time with that of the principal lands; yet possession of the principal lands was found to validate the former.
Click here to view a pdf copy of this documet : PDF Copy
Mr John Forbes insisted in the cause against Margaret Innes, mentioned on the 8th of January last, for mails and duties, as assignee by Margaret Allardice, who being infeft in liferent in principal lands and warrandice lands; and the principal lands being evicted, she and the pursuer, (her assignee) return upon the warrandice lands, wherein Margaret Innes is infeft in liferent by her husband; who stood publicly infeft therein, upon the resignation of Margaret Allardice's husband; and who alleged absolvitor, because the defender and her husband being infeft, and in possession these twenty years past, have the benefit of a possessory judgment, and so cannot be put from her possession, till her right be reduced.—The pursuer answered, That the benefit of a possessory judgment can take no place against a pursuit, upon an infeftment in warrandice, unless the possession had been seven, or more years, after the eviction; for before the eviction, there could be no pursuit upon the infeftment of warrandice in the same case, as an infeftment of liferent is not excluded by a possession during the husband's lifetime, when the wife could not pursue.—The defender answered, That the pursuer ought, in a petitory judgment, to have declared the distress, before he could put the defender from her possession.—The pursuer answered, There was no declarator required, but only the eviction, which gives immediate recourse upon the warrandice lands.
The Lords repelied the defence, and found no need of a declarator, or reduction to attain recourse; and that a possessory judgment was not competent upon any possesssion, anterior to the eviction.
The defender further alleged absolvitor, because this pursuit is founded upon Margaret Allardice her infeftment in warrandice, which is base holden of her husband; and the defender and her husband's infeftments are public, holden of the superior, and albeit posterior to the infeftment of warrandice, yet are preferable; the infeftment of warrandice being base, never clad with possession.—The pursuer answered, That infeftments in the warrandice are sufficiently vaildate by possession of the principal lands, especially now when all sasines must be registrate, as was lately found in the case of John Scot, No 52. p. 1318.: And the said Margaret Allardice has not only been in possession of the principal lands since her husband's death, but her husband was in full possession of both, which is more than sufficient.—The pursuer answered, That in Scot's case this was singular; that in John Scot's case, both the principal and warrandice lands were granted in an infeftment; and so the person infeft being in possession of the principal lands, his infeftment could not be partly public and partly private; but this infeftment in warrandice is ex intervallo.
The Lords repelled also the defence, and found the infeftment in warrandice (though base) sufficient, the person infeft being in possession of the principal lands, albeit the infeftment in the warrandice lands was ex intervallo.
