What title requisite. - What time requisite. - Connection of possession.
Earl of Marchmont v. James Hume of Aitoun
Date: 8 December 1713 Case No. No 11.
Effect of connection of the possession of author and successor.
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Alexander Hume of Aitoun tailzied his estate of Aitoun to his daughter, Mrs Jean Hume Lady Kimmerghame, and the heirs of her body; which failing, to Mr Charles Hume, brother to the Earl of Hume, and the heirs-male of his body, &c.; with this express provision and irritancy, that in case the said Mr Charles Hume and the heirs of tailzie should succeed to the title and dignity of Earl of Hume, they should eo ipso lose all right to the estate of Aitoun, and the lands should fall to the next heir. “Mr Charles, before Mrs Jean Hume's death, granted bond to the Laird of Kimmerghame her husband, for payment of certain sums, in case of his succession to the estate of Aitoun, which happened thereafter by Mrs Jean's dying without children of her body; and Mr Charles was returned and infeft as heir to her in the said estate, for payment of the sums in the bond aforesaid. Kimmerghame led an adjudication against the estate of Aitoun after Mr Charles Hume's rights thereto was irritated and fallen, by assuming the title of Earl of Hume; upon which irritancy being declared, Mr James Hume, the said Earl's second son, was served and infeft as heir of tailzie to the said Mrs Jean Hume.
The Earl of Marchmont, who has right by progress to Kimmerghatne's adjudication, pursued an action of mails and duties against the tenants of Aitoun Compearance was made for Mr James Hume, who claimed his benefit of a possessory judgment, not by virtue of his own infeftment, which was only in March this year, but by joining his possession to that of Mrs Jean Hume, his predecessor.
The Lords found this reply for the Earl of Marchmont relevant to elide the defence of a possessory judgment, viz. that Mr Charles Hume afterwards Earl of Hume was infeft as heir of tailzie to Mrs Jean Hume, and not restrained from contracting debt by any prohibitory clause or irritancy, and that, he granted the bond Whereupon the adjudicatian proceeded.
