Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Agnes Burnet, and Young, v. Mr Roderick Mackenzie of Prestonhall
Date: 2 January 1694
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The main question was, To what right he should ascribe his entry to the possession of the lands of Bogehouse. Agnes alleged, It behoved to be, to extinguish the adjudication led by the late Archbishop of St. Andrew's, his fatherin-law; because, in a competition between this pursuer and him, for the maills and duties, the bishop was preferred, and either did possess, or might have possessed.
Answered,—That the bishop did never possess during his lifetime; because the lands were full by a liferentrix, who had an unquestionable preferable right to them both; and he did not enter, till she, being straitened by her creditors arresting the rents, ceded the possession to Mr Rory, on his paying the debts, and securing a yearly aliment to her; so he neither did, nor could enter to the possession by the adjudication, so long as the liferent stood in the way. And though it was contended, that he ought to have entered on the decreet of preference, till he was legally debarred by the liferentrix, having a better right, yet the Lords found it sufficient, that she was actually in possession, and that her right is clearly preferable; seeing she compeared, and Agnes Burnet was not able to debate with her, who had only caused adjudge on a bond granted by herself, as apparent heir, and she was infeft long before the bishop's adjudication, and would have evidently excluded him; and did not think it just, that he should have wared out the expenses of a process to debate with an uncontroverted right, where he would certainly succumb; besides the unfavourableness of the said Agnes her right. Yet several of the Lords thought it a general concern, and of dangerous importance, if creditors were allowed to invert their possession, and ascribe it to any other cause than that by which they entered: but all concluded, that it would extinguish the adjudication pro tanto, aye till they agreed with the liferentrix, and entered by her right, if Agnes proved that the bishop was in possession; for it was to be presumed that Mr Rory's possession was only a continuation of the same in his lady's right, who was one of the heirsportioners to the archbishop.
