Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Clerk v. John Warden
Date: 3 February 1699
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John Warden, and one Clerk, being heritors, pro indiviso, of a piece of land, there is a division, by the Sheriff of Lanark, made in 1653; and, in prosecution thereof, a contract entered into by a letter of couch, whereby marches are set betwixt them. One who marries Clerk's daughter, and thereby gets his share, pursues for a new mettage and division. Warden Alleges,—The Sheriff's division, and the contract thereon, must be the rule; and there can be no new division, which is sought from no other design but in œmulationem vicini; because Warden has much bettered and improven his half, and Clerk, by his sloth, has deteriorated his. Answered,—The contract may bind the parties entering therein, but not the pursuer, who is a singular successor, having right thereto by contract of marriage, and knows nothing of that private agreement; et rerum dominia non transferuntur nudis pactis sed traditionibus; and, by our law, no foot of ground can be possessed in Scotland without a seasine, except minister's glebes; Nulla sasina, nulla terra; and, in case of excambion of small parcels of lands, they must either be completed by infeftment, or, if they cannot bear that expense, then lawyers devised the doing of it by way of mutual tack, for some hundreds of years; which is equivalent.
The Lords found, This contract, never being perfected by infeftment, did not oblige the singular successor, nor transmit the property. But it being informed that the march-stones were removed, the Lords thought such a delinquency as deserved to be inquired into;—a curse, by the divine law, being pronounced against the remover of land-marks; and, by the twelve tables, qui terminos exarassit diis sacer esto; and, by the title de Termino moto, it is punished arbitrarily. Anent Molestation of Marches, see Act 42, 1587.
