Durham of Omachy v. Grizzle Barclay, the Tutor's Relict
1685.
December. Case No. No. 215.
Click here to view a pdf copy of this documet : PDF Copy
One Durham, tutor or pro-tutor to Omachy, having, as was alleged, taken a right during the tutory to some lands wherein the pupil's father died in possession, and abstracted, the minor's rights; the Lords found, that the tutor or pro-tutor could not invert the pupil's possession, and appointed him to be re-possessed, seeing the tutor did not enter via juris; and reserved the point to be debated thereafter.
Harcarse, No. 984. p. 278.*** P. Falconer reports this case:
Durham of Omachy having pursued an action of removing against the Lady Ethie Betton, wherein he libels, that Duncan her husband was his tutor or pro-tutor, and that Durham of Omachy his grand-father, to whom he was apparent heir, died in the possession of the lands of Ethie-Betton, and that the said tutor had destroyed, or given back the pursuer's grand-father's right to the said lands, and had taken a new right in his own name; and lest it should be interpreted to be to the behoof of the pupil, (being acquired by the tutor) the same has been destroyed, and a new right taken in the relict's name; and therefore, the minor ought to be restored to the possession in which the grand-father died, and that the defender ought to be removed;—it was alleged for the defender, that the defunct having no heritable right, but allennarly temporary rights, such as a right to the liferent, and a gift of ward, the tutor might acquire an heritable right after that was elapsed, and continue in the possession by virtue thereof; and therefore cannot be obliged to cede the possession, seeing the pupil had no right, which might be the title of his possession. It was replied, that the tutor being master of the pupil's writs, the pursuer was not obliged to debate what right his grand-father had, but he ought to be put in his grand-father's possession by the tutor, seeing the tutor cannot allege, that he was excluded by any from the possession via juris. The Lords found, that the pupil was not obliged to debate, what was his grand-father's title, but that he ought to be reponed to the possession of his grand-father, the time of his death, continued by the tutor and his relict since his death, reserving to the relict, to recover the possession by virtue of her title, as accords of the law.
