Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. II.
What sort of possession requisite.
Countess of Dunfermline v. Lord Pitmedden
Date: 15 December 1698 Case No. No 20.
To acquire the benefit of a possessory judgement there must have been a bona fides in the beginning of the possession.
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In the debate betwixt the Countess of Dunfermline and the Lord Pitmedden, my Lady craved to be preferred to bygones, because she had the benefit of a possessory judgment, in so far as herhusband, Earl James, was, in anno 1684 infeft on my Lord Callender's apprising: and, after his forfeiture, the King and government possessing his right, these two being conjoined, made up seven years possession. Answered, In all these short prescriptions, bona fides is necessarily required in the beginning, whereas in the grand prescription it is presumed; but here Earl James could have none, for he bruiked by no other right save the back-tack of Auchinmoutie's wadset, which is the very right the Lady seeks now to exclude. Likeas, in her contract of marriage, the husband was obliged to purge the wadsets, and clear her jointure lands of all incumbrances, which was an homologation of their knowledge of the right; likeas there were sundry interruptions, and Earl James had defended against the declarator of the irritancy of the back-bond, &c. Replied, The back-tack being out of doors and annulled, it could be no title for the Earl's possession to be ascribed to, and the interruptions are null, not being at the ground and parish churches, as the act 1669 requires. Sundry questions arose here, which Were not determined, viz. if the public's possession, during the forfeiture, may be connected with her husband's, so as to make up the seven years possessory judgment in her favours. Next, if she, being only a personal creditor by the obligement in her contract, and never infeft till 1695, can claim the benefit of her husband and the estates their anterior possession before she had a real right? But the Lords found in a possessory judgment there behoved to be a bona fides, at least in the beginning of their possession; and that Earl James, before his acquiring Callender's right in 1684, had no title to possess, but either as back-tacksman, or apparent heir to him, and that he could not invert his possession in prejudice of Auchinmoutie's' wadset; and therefore repelled my Lady's defence founded on a possessory judgment, not only in respect of the interruptions, but that there was a defect in her husband's bona fides in initio possessionis, and seeing she utebatur jure auctoris, it passed with that vice and defect; and she could not be in a better case than if her husband had been founding on a possessory judgment.
