[1696] Mor 10630
Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. II. What sort of possession requisite.
Date: Mr George Anderson, Minister at Tarves
v.
Sir Alexander Forbes of Tolquhoun
17 January 1696
Case No.No 19.
Where there was a reduction of a party's light, though in absence, which behoved to put him in mala fide, so that he could not have the benefit of a possessory judgment, by possessing de novo, after the decree, he was accordingly not found entitled to the benefit of a new possesaory judgment.
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His defence was, Absolvitor from bygones of the vicarage teinds, because I stand infeft, and am seven years in possession, and so must have the benefit of a possessory judgment; 2do, I have been bona fide possessor, by virtue of a right from Panmuir, Lord of the erection of Arbroath, and so fructus perceptos et consumptos fecit suos. Answered, His infeftment can found no possessory judgment, being on a comprising led by a creditor of his father's against himself, as lawfully charged to enter heir, and who at random comprised teinds and all; so this gives no right, unless he instruct a right standing in his father's person to these teinds, antecedent to the comprising; 2do, The seven years were interrupted by a decreet of reduction of Tolquhoun's right to these tithes, obtained by Mr John Strachan, the minister's predecessor in that kirk; 3tio, There were yearly inhibitions served at the kirk door, which was sustained 23d January 1678, Duke of Lauderdale against The Earl of Tweeddale, No 31. 6427.—The Lords found Tolquhoun liable for the bygones since the minister's admission in 1683, as being sufficiently put in mala fide by Dr Strachan's decreet of reduction, though it was in absence; and that being so interrupted, he could not prescribe judgment by seven years new possession again, as was found by the Lords, 22d July 1664, Montgomery contra Home, No 14. 10627.; but did not think the inhibition of teinds (though sufficient to stop tacit relocation) was enough inducere malam fidem, being general against all and sundry, and neither executed personally nor at one's dwelling-house.
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