Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Nasmith
v.
Smith

Date: 23 February 1675

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Nasmith pursues Smith, as behaving as heir to his brother by intromission with the rents of the lands wherein his brother died infeft, for payment of a debt of his brother. The defender alleged Absolvitor, because his brother was never lawfully infeft; in so far as he was infeft by the usurpers, in place of the Duchess of Hamiltoun, being then forefault; whereas the true superior was Colonel Inglisbie, by a gift from the usurpers; and all these being void after the king's return, the defender infeft himself as heir to his father, and so did not represent his brother. The pursuer answered, That the defender, having entered in possession after his brother's death, did enter in his brother's possession; which he could not introvert, though there had been defects in his brother's infeftment; who, having been publicly infeft, and in possession, and, upon the confidence thereof, having contracted debts with several creditors, the defender could not summarily pass by his brother's right and enter as heir to his father; but ought first to have raised reduction or declarator of the nullity of his brother's infeftment, and called his creditors thereto; for, if such courses be sustained, it lays a patent way to deceive all creditors contracting bona fide with the fiar for the time, by entering to a former predecessor, and abstracting and quarrelling the last fiar's right. The defender replied, That behaving as heir is always with presumption of animus immiscendi; which cannot be in this case, for the defender shows he had no mind to meddle with his brother's heritage; and that he would not enter heir to him, but to his father. The Lords ordained the defence, as to Inglisbie's right of superiority, to be first proven; reserving to themselves,—if it should be proven how far the defender should be liable, in regard of his brother's infeftment,—whether for the duties intromitted with by him, before his brother's right were found null, yea or not.

Vol. II, Page 326.