If one can be made liable whose benefit was not intended.
Gordon v. Sir Alexander M'Culloch
Date: 22 February 1671 Case No. No 4.
A tacksman after being dispossessed by letters of ejection, continued to sow the ground. The crop found to belong to the proprietor, he paying expense of seed and labour.
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William Gordon pursues Sir Alexander M'Culloch for spuilzieing of certain corns; who alleged, Absolvitor, because the defender having right by apprizing to the lands whereon the corn grew, did warn the pursuer, and obtained decreet of removing against him, and thereupon dispossessed him; and finding the crop upon the ground, he might lawfully intromit therewith, nam sata cedunt solo, especially where the sower is in mala fide; but here he was in violence after a warning, and did continue to sow after decreet of removing; yea, a part was sown after he was dispossessed by letters of ejection. The pursuer answered, That by the law and custom of Scotland, the crop of corns, or industrial fruits, are never accounted as pars soli, or any accessory, but are still moveable, even when they are growing, so that they belong, not to the heir, but to the executor; and, in case of a disposition, without mention of the crop, albeit the acquirer were infeft after they were sown, and upon the ground, he would not have right thereto; neither doth mala fides, or violent possession, alter the case, for which the law hath provided a special remeid, viz. the violent profits; but it can be no ground to meddle with the party's crop; brevi manu, as accessory to the ground, for then the parties should both lose the crop, as pars soli, and be liable to the violent profits; neither is there any ground from the warning, nor yet from the decreet of removing, which was suspended before it attained, full effect, and the defender continued, in possession of a house upon the ground, albeit he was put out of the principal house. It was answered, That the decreet had attained full effect before the suspension, all the pursuer's goods being off the ground, and he out of the mansion-house, wherein the defender entered, and brought all his goods upon the ground; and though the pursuer's mother being a valitudinary impotent woman, was suffered to remain in a cot-house, and the pursuer with her, upon that account, that imports no continuance of possession of the land.
The Lords repelled the defence, as to that part of the crop that was sown before the apprizer entered by the letters of possession, reserving to him the violent profits for that time: but found the defence relevant, as to what the pursuer did after the defender's dispossession; and found the defender only liable for the expenses of the labouring and the seed, as being eutenus locupletior factus. See Tack.
