Found in conformity with Semplese gainst Givan, No 6. p. 9117.
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Mr William Hog having right to some moveable goods from the nearest of kin to Andrew Wardlaw, and likewise having assignation from the donatar of his escheat, pursues Mr Robert Hamilton for delivery of the goods; who alleged, Absolvitor; because, the possession of these goods presumes the property thereof, and there can be no ground to vindicate them upon Wardlaw's interest, who is dead 20 years ago, and the goods have always been possessed by Marion Geddes, his relict, and were invecta by her in the defender's lodging, and so liable to the mails and duties thereof. It was replied for the pursuer, That the property of moveables, arising from possession, is but a presumptive title, and admits of contrary probation; but, in this case, the presumption ceaseth; because, it is offered to be proved, that these moveables were in the possession of Wardlaw when he was denounced, and also when he died; so that they could not pass by commerce, unless they were instructed that they were confirmed; and the relict's possession, though for 20 years, could not infer property, because, the goods being confiscated by the husband's rebellion, the relict's right ceased.
The Lords did not sustain the reply upon the rebel's possession at the time of the rebellion, which, though it exclude his relict's interest, doth not hinder the disposal of the moveables by commerce to creditors; but sustained the reply on the possession of the defunct, unless confirmation were instructed.
Fol. Dic. v. 1. p. 592. Stair, v. 2. p. 683.*** Fountainhall reports this case.
A Donatar to the escheat of a rebel pursues some intromitters with moveables belonging to the rebel. Alleged, I cannot deliver these moveables to you, because I have now possessed them by the space of these 20 years; and possession in mobilibus presumes property, and needs no other title. Replied, Possession is only titulus putativus et coloratus, and makes a presumption in behalf of the possessor, unless a better title be shown, and then presumption cedit veritati. But here it is positively offered to be proved, that these goods belonged to the defunct rebel, and his relict only continued in the possession, jure familiaritatis, and so it cannot prejudge the fisk, cui erat jus quæsitum per denunciationem. This being reported, “The Lords found the donatar had right to the goods, he proving they were in the rebel's possession the time of his death, and this notwithstanding of the long posterior possession and taciturnity.”
