What title requisite. - What time requisite. - Connection of possession.
Elizabeth Moys and her Sisters, v. Robert Earl of Morton
Date: 16 July 1724 Case No. No 13.
In a process of mails and duties, at the instance of an appriser from a wadsetter, against tenants, pleaded for the proprietor, that he had possessed more than seven years on infeftment. Answered, the defender represented the granter of the wadset. Replied, this could not be tried incidenter. The Lords sustained the possessory judgment, reserving reduction.
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William Earl of Morton having granted a wadset-right of a part of his lands of Aberdour in the year 1645, the same was adjudged from the apparent heir of the wadsetter, but subject to the liferent-right of the wadsetter's wife, who survived him, and continued to possess the lands till the year 1690.
The pursuers having right by progress to the said adjudication, insisted in a mails and duties against the tenants, and called the Earl as possessor and intromitter, for whom it was pleaded, That he and his predeeessor had been in possession in virtue of their infeftments, viz. his immediate predecessor's sasine anno 1705, and his own anno 1720, much more than seven years, and so must have the benefit of a possessory judgment, until the pursuers prevail in a process declaratory of their own, and reductive of his rights, especially since they had not produced the original wadset.
It was answered for the pursuers; That they produced the sasine taken on the original right, and a registrate eik to the wadset, wherein the original was verbatim repeated; and as to the possession, that they were all under age, and wanted tutors at the time of the liferentrix's death, by which means the Earl's predecessor attained a wrongous possession 2do, The Earl could not have the benefit of a possessory judgment in exclusion of his predecessor's deed, whom he represented either as heir served, or at least upon the act 1695, for obviating the frauds of apparent heirs.
Replied for the Earl, 1mo, That he did not represent the granter of the wadset, neither as heir served, nor upon the act 1695, at least he had the benefit of the act 1696, explanatory of the said act 1695. 2do, Admitting that the Earl did represent, yet he could not be denied the benefit of a possessory judgment after upwards of a septennial possession, upon titles by infeftment, since that was good to its proper extent against all rights exclusive of his, and was a sufficient defence, till declarator and reduction, against every claim except debita fundi, such as infeftments of annualrent or feu-duties, &c. and the reason and necessity of admitting such possessory defence till declarator and reduction, was particularly evident from the points which occurred in this very process concerning the Earl's representation, which could not, according to any form of judicial procedure, be tried incidenter in a process of mails and duties.
The Lords sustained the defence of a possessory judgment proponed for the Earl, reserving reduction, &c. as accords.
Act. Alex. Hay.Alt. Ja. Graham, sen.Clerk, Gibson.
Edgar, p. 86.
