Scottish Court of Session Decisions

Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. I.

What title requisite. - What time requisite. - Connection of possession.

Dame Martha Lockhart, and Sir John Sinclair of Stevenson her Husband for his Interest,
v.
Richard Meikle of Tweedyside and Others

Date: 21 January 1724
Case No. No 12.

Found, that a party could not acquire the benefit of a possessory judgment, in opposition to decree declaring the marches.

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Dame Martha Lockhart having, in virtue of her right of property, insisted in an action of removing from certain parts of the muir of Stenhouse; the benefit of a possessory judgment was pleaded for Meikle, one of the defenders, in regard he had been seven years in possession of the lands from which he was Warned to remove, as part and pertinent of his lands of Tweedyside, wherein he stood infeft upon a precept of clare constat granted by the pursuer. And for the other defenders it was alleged, That they possessed as tenants to John Armour, and could not be removed until their master was called.

It was answered for the pursuer; That Meikle never was infeft in the muir of Stenhouse, neither could his possession of any part of it be connected with his title to the lands of Tweedyside; for, by a decreet of the Lords of Session, in the year 1681, the muir of Stenhouse was bounded by certain marches, and to belong in property to the pursuer's predecessors. And to the defence for the Tenants, it was, answered, That since the pursuer acknowledged heritor of the muir of Stenhouse, she could not call any as such, and was in virtue of her right entitled to remove all possessors from any part of her property.

The Lords found, That the defender had not the benefit of a possessory judgment in respect of the decreet declaring the marches; and found, that the pursuer ought to call the master cum processu.

Reporter, Lord Grange. Act. Arck. Hamilton, sen. Alt. Ja. Boswell. Clerk, Mackenzie. Edgar, p. 1.