What Title requisite to found an Action of Spulzie.
Anna Falconer v. Burnet of Criegie
Date: 10 July 1724 Case No. No. 21.
A person being for eleven years in peaceable possession of a moss, to which she and her husband had a disposition, but no infeftmeot, war found to have right to pursue a spuilzie against the granter of the disposition who carried off her peats.
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In an action of spuilzie pursued at the instance of Anna Falconer against Mr. Burnet, for wrongously and riotously carrying off the peats which she had caused cast in the Moss of Criegie; the defender objected to her title, and pleaded an exclusive right in this person, in as far as he stood infeft in the said Moss, and she not being infeft, had no title to insist against him.
It was answered for the pursuer, That she had produced a disposition signed by this defender to her husband and her, of what part of the Muir and Moss of Criegie belonged to the lands contained in the said disposition; and she contended, That although no such right had been produced, yet her possession by itself was a sufficient title, without shewing any right of disposition or infeftment; and she offered to prove her constant yearly possession since the time of her husband's decease in the year 1712.
It was replied for Criegie, That though in moveables possession presumed property, yet that did not hold in the right of lands, unless an infeftment was produced; for sasines are become so necessary a solemnity, that none can properly be said to possess real rights without them.
Duplied for the pursuer, That right and possession, whether of heritage or moveables, were in law things of a different nature, and had quite different effects: Possession is a right and title of itself, and where it has been lawfully attained, the possessor is as much entitled to be maintained in his possession, as any other person having the most unquestionable right; and in the present case the pursuer's possession must be presumed lawfully attained, both from the disposition produced and her peaceable possession for so long a time.
The Lords found, That the pursuer being in the peaceable possession, without any interruption from the defender before the year 1723, she is entitled to carry on her action of spuilzie.
Cited for the Pursuer, Stair's Institutions, B. 1. T. 9. and B. 4. T. 24.; No. 4. p. 3607. and No. 17. p. 10511.
For the Defender, Maxwell against Ferguson, June 25. 1673. No. 17. p. 10628. voce Possessory Judgment.
Act. Graham, sen.Alt. Dalrymple, sen.Reporter, Lord Milton.Clerk Mackenzie.
Fol. Dic. v. 4. p. 298. Edgar, p. 76.
