Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Stevenson
v.
Dobie

Date: 24 June 1671

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Stevenson, having comprised the lands whereof Dobie was tacksman, did pursue for maills and duties. It was alleged for Dobie, That he was infeft in an annualrent, and in possession before the compriser's infeftment or diligence; which being found relevant for proving his possession, in termino probatorio, at the advising of the cause; It was alleged for the compriser,—That the tack could not prove possession of the annualrent; because the first term of payment thereof was after the compriser's infeftment; and so it could not be drawn back, there being medium impedimentum. It was answered, That the annualrenter being tacksman, and in natural possession, could do no diligence against himself for obtaining a decreet of possession; and therefore, his possession, from the time that he was infeft, behoved to run, and make his annualrent clad with possession.

The Lords did repel the defence, and preferred the compriser; and found, that the annualrent could not be clad with possession until the first term of payment was past; but, if the annualrenter had obtained decreet of poinding the ground against the heritor, the term of payment being elapsed, the case would have been more difficult.

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