Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. II.
What sort of possession requisite.
Hugh Maxwel v. Alexander Ferguson
Date: 24 June 1673 Case No. No 17.
Three years possession will not defend a singular successor against an action of intrusion, to make him liable for the ordinary duty, if his author's possession was vi aut clam.
There can he no benefit of possessory judgment where the entry to possession has been by intrusion.
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In an action of intrusion pursued at the instance of the said Mr Hugh against Mr Alexander, as succeeding in the vice of his father, it being alleged, That the said action was prescribed, not being pursued within three years; and the defender ought to have the benefit of a possessory judgment, because that he offered to prove, that he stands infeft in the lands of Isle, whereof the lands libelled are a part and pertinent. It was replied, That albeit the ejection may prescribe as to violent profits, and craving only retrocession, this pursuit ought to be sustained, and the defender cannot crave the benefit of a possessory judgment, because it is offered to' be proved, that the pursuer and his authors, by virtue of their infeftments of the saids lands, as a part of the barony of Dal-swinton, were in peaceable possession of the saids lands, until the defender's father taking advantage at his own hand, without any process, did set down march-stones, and thereby included nine or ten acres of the pursuer's land, and did violently debar the pursuer and his tenants from the possession.—The Lords sustained the pursuit, and repelled the defence; and found, that the defender's entry to the possession being at first vitious, he could never thereafter claim the benefit of a possessory judgment, which is only competent to one who is bona fidei possessor, whereas one that enters vi et clam, that vice doth so affect the possession, that it continues, and is transmitted to the successors in that vice, so that an intrusion may be pursued against him, after three years, to make him liable for the ordinary duties, but reserved to the defender himself, upon a valid title, as accords.
Fol. Dic. v. 2. p. 88. Gosford, No 598. p. 341,*** Stair reports this case:
Mr Hugh Maxwel, as now having right to the barony of Dalswinton, pursues Mr Alexander Ferguson, as succeeding in the vice of Alexander Ferguson his father, who did intrude himself in the possession of a part of the said barony, and did adject it to his own lands, and set up march-stones about it, as a part of his own lands, without the consent of the heritor for the time, or the authority of a judge. The defender alleged, Absolvitor, because actions of intrusion, and consequently succeeding in the vice of the intruder, prescribe, when not pursued within three years after the intrusion, and it is many years since this alleged intrusion, and the party dead; 2do, The pursuer stands infeft in his own lands, and hath possest this ground in question as part and pertinent thereof by the space of seven years before this process without interruption, and so hath the benefit of a possessory judgment, and cannot be quarrelled till his right be reduced. The pursuer answered, That prescription of ejections is only as to the oath in litem, and violent profits; and the pursuer restricts to restitution, and the ordinary profits, which are still competent without warning, when the defender's entry to possession was violent and vitious, neither can the defender have the benefit of a possessory judgment, unless his possession had been lawful.
The Lords sustained the process, restricted as said is, and found that the defender had not the benefit of a possessory judgment, his possession not being lawful.
