Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. II.
What sort of possession requisite.
Earl of Winton v. Gordon of Letterfury
Date: 15 July 1668 Case No. No 15.
A possessory judgment sustained on an infeftment on a voluntary disposition, against an appriser who had denounced the lands before that disposition.
Citation has not such an effect as decree had in the case above.
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The Earl of Winton having apprised certain lands in the North, pursues for mails and duties. It was alleged for Gordon of Letterfury, That he stands infeft in these lands; and, by virtue of that infeftment, is seven years in possession, and thereby has the benefit of a possessory judgment, and must enjoy the mails and duties till his right be reduced. The pursuer answered, That he had interned process upon his right for mails and duties anno 1658, whereby the matter became litigious, and which stops the course of any possessory judgment till that citation expire, by the course of 40 years, in the same way as it is in removings or ejections, where summons once intented does not prescribe by three years thereafter, but lasts for 40 years. The defender answered, That the case is not alike; for the benefit of a possessory judgment is introduced for the security of persons infeft, that they be not summarily put to dispute their authors rights, which are oft-times not in their hands, but in the hands of their authors or superiors; and there was never any reply sustained against the same, unless it were vitious or violent, or interrupted; but here the last seven years possession, after that citation, is neither interrupted nor vitious; and these being no stop to take away the effect of that citation, it were of bad consequence, if persons infeft 39 years after a citation behoved summarily to dispute their rights.
The Lords sustained the defence of the possessory judgment, upon seven years peaceable possession before the citation, and repelled the reply.
The pursuer further replied, That, in the seven years after the citation, there were some years wherein there was a surcease of justice, and no courts in Scotland; 2dly, The citation was by his tutors and curators, and he was minor during the seven years. It was answered, That a possessory judgment was competent against minors, and there was no respect of minority therein, which is only excepted in the great prescription extinguishing the right; but in the possessory judgment, in relation to the way of process, and the fruits in the mean time, as in all prescriptions, tempus continuum, and not tempus utile, is respected.
The Lords also repelled both these replies, and, notwithstanding thereof, sustained the exception on the possessory judgment.
Fol. Dic. v. 2. p. 88. Stair, v. 1. p. 552.
*** See Gosford's report of this Case, Section 6th, h. t.
