Scottish Court of Session Decisions

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

Agnes Blair
v.
James Wait

Date: 27 January 1672

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Monivaird, having given a wadset to Agnes Blair and her husband, in liferent, of the lands of Whytbank, by virtue whereof she had been several years in possession; thereafter he did give a new wadset to James Wait of the said lands, wherein he was obliged to warrant Wait's right against the prior infeftment, and to purge the lands thereof, and to enter Wait to the possession: after which he did obtain a decreet of removing against the said Agnes for noncompearance, and did enter Wait to the possession; which decreet being reduced by the said Agnes, she did pursue for the maills and duties of the lands for the whole years that she was debarred from the possession.

It was alleged for Wait, That he could only be liable after citation and the reduction of the decreet of removing, before which he was bona fide possessor by virtue of his infeftment,—there being a decreet of removing standing unreduced against the pursuer.

It was replied, That the said decreet beinfunditus taken away as if it had never been given, and the defender having taken Monivaird obliged to warrant him against the pursuer's right, he could not be ignorant thereof; and so was in mala fide to dispossess upon a decreet for null defence.

The Lords did sustain the summons for the whole years since the decreet of removing and the date of the citation in the reduction; and found, That, knowing the prior wadset, and that the pursuer's possession was not taken away but by a decreet for null defence, he was in mala fide to enter, and was liable to the whole duties, albeit they were fructus percepti et consumpti.

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