Scottish Court of Session Decisions

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

The Lord Lindsay
v.
The Lord Balmerino and The Laird of Pourie Fotheringhame

Date: 31 January 1673

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In an improbation, pursued at the instance of the Lord Lindsay, as succeeding by progress, in the place of the Earl of Crawford, in the right of the lands of Moorhouse, wherein certification being craved contra non producta:

It was alleged for the Lord Balmerino, That there could be no certification; because he had produced an infeftment of the property, granted to him by one Lovell, his author, to be holden of himself, by virtue whereof he had been in possession past forty years; and so his right was prescribed. And as to the superiority, they had produced a charter, flowing from the Earl of Crawford, to the Laird of Pourie Ogilvie, of whom Lovell held the said lands.

It was replied, That the pursuer being infeft in the said lands, the writs produced could not hinder certification, seeing there was no seasine following upon Pourie Ogilvie's right; and forty years' possession of the property could not defend against the improbation.

The Lords did sustain the allegeance as to the right of property; but, as to the superiority, did grant certification against all rights flowing from Lovell's superior, or from the king; seeing it was acknowledged that the Earl of Crawford was superior, and it was not instructed that he was fully denuded.

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