Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 WINTER SESSION. - Anni 1973.
Robert Macmorran v. Thomas Robertsone
1676.
June.
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Robert Macmorran, as assignee constituted by Mungo Wood, college-treasurer of Edinburgh, who, eo nomine, was confirmed executor qua creditor to Isobel Barron, first relict of Nicol Udwart, and then of Mr Robert Balcanquall, (and which Isobel was infeft by the said Nicol, in 1624, in the liferent of that tenement and dwelling-house, now acquired and possessed by Thomas Robertson, brewer,) pursues the said Thomas for the maills and duties thereof, by the space of four or five years before she died, which was in anno 1667; her last husband, Balcanquall, (to whom the same belonged jure mariti, and who had disponed it to Thomas his authors,) having deceased in 1662, and so her own right reconvalesced.
1mo, Alleged for the defender,—It was prescribed.
Answered,—Though forty years was run, yet, contra non valentem agere nulla currit præscriptio; she was clothed much of that time with a husband. This was sustained to interrupt.—Vide supra, the case of Mason and Rind, [January, 1672,] numero 333.
2do, Alleged,—He was seven years in possession, by virtue of a real right and infeftment, before the intenting of the pursuit, and so had the benefit of a possessory judgment, and behoved lucrari fructus perceptos.
Answered,—That he could not acclaim the benefit of a possessory judgment, unless he could say seven years in possession, by virtue of a right, since Balcanquall, the liferentrix, her last husband's death, in whose lifetime she could not pursue or interrupt; likeas the defender's possession was her possession.
Replied,—That the seven years for giving a possessory judgment must be accounted within these years in which she was married; as well as the Lords did, in, 1668, between the Earl of Winton and Coventon, find, that minority did not hinder the seven years for making up the possessory judgment to run; although minor non tenetur placitare, and is equiparat to a wife under the power of the husband. Craigic inclined to repel this, unless we would allege seven years in possession since she became sui juris et valens agere by her last husband's decease.—See Stair's System, tit. 12, Of Real Rights, No. 23. pag. mihi 180; infra, 30th July, 1677, No. 631, Lindsay against Frazer.—Then we urged, that after the death of her first husband she was three years a widow sui juris, and all that time was silent, and the defender's authors possessed; and, since the decease of her second husband, she was silent other three or four years: which two times and taciturnity being conjoined together, made up seven years' peaceable possession before her warning and action for maills and duties; and so behoved to put the defender in the case of a possessory judgment, that he was not liable to dispute his right but in a reduction. This subtilty seemed plausible to Craigie. Vide parag. 12 et 13, Institutionum de Usucapionibus, ibique interpretes.
But, 3tio, we alleged, Absolvitor; because we offered to prove paid for the years acclaimed, except one; in so far as the liferentrix had granted a discharge to Margaret Balcanquall, daughter and heir to Mr Robert, her husband, and so liable to the defender to warrant her father's disposition to his authors, acknowledging her receipt of the maills and duties of her liferent lands in Edinburgh, which the said Margaret Balcanquall had intromitted with. Now the liferentrix being paid by her, she nor her executors can never recur; and if the said Margaret Balcanquall should lay claim to them, she is repellable in law, because she is the person liable in warrandice to the defender, et quern de evictione tenet actio eundem agentem repellit exceptio.
Answered,—1mo, It behoved to be a specific discharge of the individual maills and duties now acclaimed, and of the same years, and for the same house. 2do, Offered to prove she liferented other tenements in Edinburgh; and so it may be a discharge to the said Margaret of her intromissions with these. 3tio, Offered to prove, by Thomas Robertsone's own oath, that he never paid or counted to the said Margaret, to Isobel, the liferentrix, or any other, for the maills and duties now acclaimed.
Replied to the first,—A general discharge was as valid and effectual to extinguish and take away a debt as a specific one. To the second, They behoved relevantly to say, that she liferented two different tenements beside this controverted; for if she liferented this and another, the discharge will extend to both, mentioning an acquittance of intromission with her liferent tenements in plurali. Find the third relevant, of consent.
This cause ended in an agreement; and Thomas Robertsone paid 600 merks for a discharge of it.
