Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. II.
What sort of possession requisite.
Menzies v. Campbell
Date: 24 January 1679 Case No. No 18.
A possessory judgment of of land, as part and pertinent, by seven years possession Was elided, because the possession was not lawful.
The long prescription excludes all enquiry as to the entry to possess.
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Menzies of Shian pursues a removing against Campbell from a meadow. It was alleged for Campbell, That he has been in possession of the meadow in question, as part and pertinent of his lands, by the space of seven or ten years, and so secure in hoc judicio possessorio, till his right be reduced. The pursuer answered, Non relevat to pretend to this land as part and pertinent, because it is far distant from any part of the defender's lands; 2do, A possessory judgment is only by a lawful possession; but it is offered to be proved, that the defender's father, to whom he succeeds, was tenant, and paid mail and duty for this meadow to the pursuer, his predecessors or authors, and therefore could not intervert his possession, and pretend the meadow to be part and pertinent of his own lands, at least the defender's tutor paid mail and duty therefor.
The Lords repelled the defence of a possessory judgment, in respect of the reply of interverting the pursuer's possession, by the defender's father having paid mail and duty to the pursuer, his predecessors or authors, but would not sustain it upon the tutor's payment, for though the long prescription excludes all question, as to the entry of the possession, yet the possession requisite for a possessory judgment must be lawful.
