Whether a Father's possession validates a base right in favour of his Son.
Garner v. Colvin
Date: 10 July 1669 Case No. No 48.
Found in conformity with No 46. p. 1313.
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James Colvin having apprised the lands of Lady kirk, and some tenements in Ayr, and being infeft therein; Garner's wife and bairns raise a reduction, and allege, that the appriser's right is null, as to the tenements in Ayr, because John Garner had never right thereto, but the right was originally granted to young John Garner the pursuer, by his mother's brother. The defender answered, that the said right must be affected with his apprising, as if it had been in the father's person, because young Garner was then an infant in his father's family; and albeit the right be granted by his uncle, yet it is necessarily inferred to be acquired by the father's means, because it bears not for love and favour, but for sums of money, and the uncle had bairns of his own. It was answered, that albeit the right had been acquired by the father's means, yet it is anterior to the apprising, and sums on which it proceeds, whereupon nothing can be taken away but what is posterior thereto, albeit there were a declarator and reduction intented for that purpose, as there is none.
The Lords sustained the allegeance, and reduced the apprising as to these tenements.
2dly, The pursuer alleges the apprising (as to Lady kirk) must be reduced, because the pursuers produce a prior infeftment granted by John Garner to his wife in liferent, and his bairns in fee. It was answered, that the said infeftment was base, never clad with possession. The pursuers replied, that the father's liferent not being reserved, the continuation of possession was as lawful administrator to the pursuers bairns, and if need be, it is offered to be proven he had a factory from them. The defender answered, that a father's possession being continued, was never found to validate a base infeftment granted to his children, albeit his liferent were expressly reserved; but it is ever accounted a latent fraudulent deed, and a factory can be of no more force then a reservation, otherwise it were impossible to obviate fraudulent conveyances betwixt fathers and children. The pursuer answered, that albeit such reservations are not valid in rights freely granted by fathers, yet it meets not this case, especially where there was an anterior onerous cause; John Garner being obliged by his contract of marriage, that what lands he should acquire, should be to his wife in liferent, and to the bairns of the marriage.
The Lords found that the bairns infeftment granted by their father, albeit he had possest by a factory from them, was not clad with possession, or sufficient to exclude a posterior public infeftment, and that the clause in the contract was but to substitute the children heirs to their father in the conquest.
Here it was not alleged, that the factory was made public by process founded at the father's instance, or otherwise in this process. The defender, to satisfy the production of an assignation, upon which the apprising proceeded, which the pursuers offered to improve as false in the date, now produced another assignation of the same date, and declared he abode by the same as of that date; and that it being amissing, he had caused the cedent to subscribe another of the same date with the first, which did expressly bear reservation of another assignation formerly subscribed, which he did also abide by, as truly subscribed, but not of the date it bears, but of the date of the true assignation insert therein.
The Lords sustained the assignation now last produced, and quarelnrdtoi the other assignation, though another date was insert, than when it was subscribed, for the cause foresaid.
