A person deriving right from one holding de facto the fee of lands in his person, tho' indebite given, and by mistake, was round entitled to the process of poinding the ground.
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The Earl of Crawford having borrowed 8000 merks from the mother and grandmother, and two of their children, for themselves, and in name and behalf of their said children, he is obliged by his bond to infeft the said mother and grandmother in liferent, and the said children in fee, in an annualrent out of certain lands; but, by a mistake, the precept of sasine contained in the bond, is in favours only of the mother and grandmother, and for infefting them as fiars of the said annualrent, and accordingly they are infeft; and yet thereafter the said mother and grandmother acknowledging, that the said infeftment was so taken upon mistake, did by a disposition, bearing the narrative foresaid dispone the fee in favours of the said children; and there was a pursuit intented, at their instance, against the Earl of Crawford, for poinding of the ground, wherein it was alleged, That the mother and grandmother being only liferenters, could not resign the fee, which they had not; and if the pursuers made use of their right, from them, the defenders ought to be assoilzied, because the mother and grandmother, by a transaction betwixt the said Earl of Crawford and them, had accepted, the time of the Englishes, a parcel of lands, in satisfaction of the said debts.
The Lords found, notwithstanding of the said allegeanse, that the pursuers ought to have process for poinding the ground; in respect the mother and grandmother had de facto the fee in their person upon the said precept and sasine; and the same being given indebite, as said is, they might have been compelled to denude themselves thereof; and therefore might voluntarily, and accordingly did, denude themselves thereof; and the said transaction could not prejudge them, seeing they derived their right from the said persons qualificate. in respect of their interest and error foresaid, and they might have been compelted to give the same; and the Earl of Crawford was not in bona fide to contract with them, seeing by the bond grunted by himself, they were only fiars, and the other but liferenters. In præsentia.
Act. Lockhart & Beaton.Alt Cunningham & Swinton.Clerk. ———
Dirleton, No 338. p. 161.
