Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL. 1672.
July.
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About the same time there arising a competition betwixt an executor creditor, and the landlord of the house wherein the defunct died, and who was owing him two terms' mail: the landlord claiming the household plenishing jure hypothecæ, which the law gives him in the utensils and domicils, the same was opposed by the executor creditor, because he offered him to prove that the greatest part of that household furniture which he had confirmed, and which the landlord acclaimed, though it was standing in the house, yet it never belonged to the last defunct, who stood personally obliged for the mail to the said landlord, she having taken the house off him; but it properly and truly belonged to her husband, who had died some two years before; et jure quodam familiaritatis, she had retained and continued the possession of those goods, which formerly she had conjunct with her husband; and that she never had any right to them established in her person any manner of way; but they solely appertained to her husband, who being debtor to him in a certain sum of money, he had confirmed the said goods, as executor creditor to the husband. It may be also urged, that in generali rerum obligatione, præcipue tacita, nunquam continenter ea quæ verisimile est quemquam specialiter obligaturum non fuisse; l. 6 D. de pignoribus. Vide Harprecht ad par. 7. Inst, de actionibus, No. 18, et seq. But it may be said, that in poinding of the ground, any goods, though not belonging to the debtor and heritor of the ground, if found thereon, may be taken and poinded; ergo, here the landlord may take any goods he finds in his house.
To which it was answered,—That the law was absolute, and distinguished not, et ubi lex non distinguit, nec nos; that it had positively adjudged a tacit hypothec to the landlord, omnium mobilium quæ induxit inquilinus in domum conductam, and to the master in prædiis rusticis in omnia invecta et illata a colono; item omnia bona in navi hypothecantur pro naulo. And it were a very unreasonable faschery and vexation, yea, both impertinent and distasteful, to put landlords to inquire or try if the goods that are in their tenants' houses be theirs, yea or no, seeing the finding of them in their possession presumes and induces the property.
Replied,—It is extremely absurd to think that if I should lend or depositate and set by any of my household stuff beside a friend, that his landlord should have a right of detention of my goods, albeit I prove to him that they are mine, which takes off that weak presumption of being found in his possession.
And this privilege of tacit hypothecation ought not to be stretched beyond the true limits of law and material justice, or to give him an interest in the goods within the house, any farther than the same belongs to his tenant; and I think it would be so found by the Lords: yet the present case seems to be clothed with some more favourable circumstances; as, that she was the wife, and only continued her former possession, and had used them as her own jure familiaritatis two whole years; which in moveables may be enough to prescription, if not of the property against the true owner, yet at least ad hunc effectum to give the landlord a hypothec in them for the mail addebted by her who had so peaceably possessed them, though without a title. But whatever be in this, there is no doubt but the landlord's hypothec will stand good in them quoad a third: because, as relict, the law appoints her a third; and though she had not legally claimed it in her lifetime, nor established the right thereof formally in her person, yet the landlord, as creditor to her, may now seize upon it. L. 41 D. de acquirenda possessione. Vide omnino Matthæum de Afflictis, decisione Concilii Neapolitani 184.
