Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. VI.
Against what Rights does it take place? - Runs not contra non valentes agere. - if competent against an Action of Warrandice? - Runs against Minors.
Hadden v. Moir
Date: 17 December 1673 Case No. No 49.
There is no benfit of a possessory judgment against debita fundi.
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Patrick Hadden pursues the Tenants of the estate of Glenegies, for mails and duties. It was alleged for John Moir, Absolvitor, because he brooks by a wadset from Glenegies, by virtue whereof he had been in peaceable possession more than seven years; and albeit the pursuer be infeft on an apprising anterior to his wadset, the defender having the benefit of a possessory judgment, is secure till reduction. 2do, He is secure even as to the point of right in a reduction, because he being infeft base, the apprising was deduced before the first term of the tenant's payment, and the appriser infeft, so that the base infeftment was not a latent right retenta possessione the time of the infeftmfent upon the apprising; he did all possible diligence, and obtained possession the very next term. The pursuer answered, That albeit a base infeftment might be preferable to a posterior voluntary infeftment, obtained before the term at which the base infeftment could possess, yet that cannot extend to an apprising, which is a legal diligence, 2do, The pursuer is also infeft upon an apprising deduced for the avail of Glenegies marriage, which is debitum fundi; and albeit the apprising be after Moir's right, yet it is drawn back to the lime the marriage fell, in the same way as an annualrent or feu-duty; and being debitum fundi and in effect a part of the superior's reddendo, it is not excluded by a possessory judgment, as hath been often times found in the case of annualrehts and feu-duties The defender replied, That the avail of the marriage was exorbitant, whereas it is decerned to be L. 8000, Glenegies' rental being but L. 6000, and having as much debt as the worth of his land, which was not represented to the Lords, but supprest by collusion to exclude creditors; and albeit it be pretended that the, defender was called, he is not compearing. It was duplied. That the vassal having such a rental, whatever his personal debts were, he could not evacuate the superior's casualty thereby, and the modification; being in arbitrio judicis, it hath a great latitude, and could not be recalled; for the Lords may, and have modified, one, two, or three years rent for the marriage.
The Lords found the defender's allegeance upon the possessory judgment relevant against the first apprising, and found the question of right between the base infeftment and the apprising could not be determined in this process; but in a reduction; but found the apprising upon the marriage to be drawn back to the time that the marriage was due, and that being debitum fundi it excluded a possessory judgment; and found if the avail was exorbitant to the prejudice of creditors who compeared not, the personal debts being supprest, the Lords would consider the same, and ordained condescendences to be given in, such as would make abatement beyond the Lord Ordinary's latitude.
Fol. Dic. v. 2. p. 91. Stair, v. 2. p. 242.*** Gosford reports this case:
Patrick Hadden, having comprised the estate of Glenegies did pursue John Moir for the mails and duties of a part of the lands possessed by him. It was alleged for the defender, That he could not be liable because he was infeft upon a wadset to the said lands, prior to the pursuer's comprising the same, and by virtue thereof had been seven years in possession. It was replied, That albeit the wadset, was prior, yet it was only a base right, never had with possession before comprising; likeas, the pursuer was infeft upon another, comprising, proceeding upon a decreet of liquidation of the avail of Glenegies' marriage, which was debitum fundi, and prior to the defender's wadset. It was duplied to the 1st, That albeit the wadset was a base right, yet the defender upon the first terms of payment, having done all diligence, and entered into possession, the intervening comprising could not be preferred, which is only allowed where those who have base rights are negligent, and may enter to the possession before the posterior public right; and, as to the comprising upon the decreet of the liquidation upon the avail of the marriage, it is no real right of its own nature, but a constitution of a debt, whereupon a comprising may follow, and there being no infeftment, it cannot prejudge a posterior wadset, whereupon infeftment followed and possession. The Lords did find, that the comprising and infeftment intervening betwixt the wadsetters base right, and first term of payment, was preferable in law, notwithstanding that the wadsetter could do no diligence before the term, and likewise, that the comprising upon the liquidation of avail of the marriage, was preferable to all base rights, albeit clad with possession, the same being debitum fundi, and due to the superior after liquidation, after which it became as real to affect the lands, as a feu-duty against all singular successors who were not confirmed by the superior.
