Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VII.
Whether a preferable infeftment without interpellation will induce mala fides.
Scrimzeour v. The Earl of Northesk
Date: 8 February 1676 Case No. No 30.
An infeftment of relief was reduced, on account of a prior apprising; but the defender's possession was held to be bona fide until the decree of reduction.
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Guthrie of Achmethie granted disposition to the Earl of Northesk of his lands of Achmethie, which by a back-bond was qualified to be for payment and relief of sums due to the Earl: But before infeftment, umquhile Major Scrimzeour apprised the lands from Guthrie, and was thereupon infeft, and obtained decreet of mails and duties against the tenants; and being killed at Dunbar, the Earl of Northesk entered to possession, and obtained payment of the mails and duties from the tenants, without process of law. Margaret Scrimzeour being infeft as heir to her father, did obtain reduction of the Earl's right, as being posterior to her father's right, and pursued the Earl for compt and reckoning of his intromissions, who alleged absolvitor for all years preceding the decreet of reduction; because he enjoyed the rents as bona fide possessor, by virtue of his infeftment of relief.—The pursuer answered, 1mo, That a bona fide possessor is only secure when he possesses as dominus, who may freely spend what he hath; but this infeftment being for relief, and comptable, was in place of a stock, and cannot be presumed to be spent as rent. 2do, Bona fides cannot be pretended, where the possession is vitious, vi, clam, aut precario; but the Earl's possession was vitious, intervening Scrimzeour's possession, who had obtained decreets against the tenants; and so was clandestine.—The defender replied, That he was not obliged to know Scrimzeour's right or possession; but being infeft by the common author, he might warrantably demand the duties from the tenants; and if they voluntarily paid him, he might lawfully take up the same, and continue his possession till his bona fides, should be interrupted, or his right reduced.
Which the Lords sustained; and found that he might employ the rents uplifted before the decreet of reduction; being comptable for the superplus.
