Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. VI.
Possession upon a Right null ex facie.
Lady Cardross v. Hamilton
Date: 2 January 1711 Case No. No 26.
A tenant claiming for meliorations, was found a mala fide possessor on a tack by a minor, bearing to be with consent of his curators; as their subscriptions were not adhibited.
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The deceased sir William Stewart of Kirkhill, having set a tack of some of his lands of Strabrock to Alexander Hamilton of Brocksburn for three 19 years, the Lady Cardross, his sister? raised a reduction of the said tack on minority and lesion. The tack itself instructed the first part; for it bore to be set with consent of his curators, and there was none of them subscribing. The Lords found the tack ipso jure null. But he having replied on great meliorations and improvements of the ground, by which the rent was raised, a probation before answer was allowed; but at advising it was contended for the Lady, that no respect could be had to his improvements, (esto it were so, as was denied,) neither could they afford any repetition or allowance, because he was mala fide possessor, his own tack bearing its dittay in græmio, that it wanted the curators consent, and so he could not be ignorant of the nullity and defect of his own right; for ignorantia juris neminem excusat, and scire et scire debere æquiparantur in jure; and therefore law never affords him action for the expences wared out by him on a subject which he knew he possessed mala fide, no more than he who builds on another man's ground sciens id esse alienum can crave repetition of his expences; besides, it appears by the probation, that all the meliorations used here was during the first six years of the tack, by digging out whins, dunging, faulding, &c. the benefit whereof he enjoyed by possessing 20 years longer, which did more than compense his former debursements.—Answered, The tack, though relating to curators, yet names none; and non constat, that he had any; in which case, not being revoked intra quadriennium utile, it was a good and valid tack; and so never put him in mala fide. And esto it were taken at the worst, mala fide possessor deducit impensas necessarias et utiles, and only loses his voluptuary ones; and the law has determined, that a tenant having a long tack, and building on his farm for his better accommodation and convenience, non præsumitur materiam domino fundi donasse, l. 55. § 1. D. locat. Yet the Lords found, That Hamilton by his null tack was in mala fide, and could have no allowance for his improvements; and if any were due, they were more than compeosated and reimbursed by his long lucrative possession posterior thereto.
On the 20th July 1711, an appeal being given in against this interlocutor, it was moved that it came too late, being near seven months after the interlocutor; and that the Roman law had prefixed (decendium) the space of ten days. But the Lords admitted the appeal. see Tack. Minor.
Fol. Dic. v. 1. p. 108. Fountainhall, v. 2. p. 618.
