Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.

Johnstons
v.
Steel of Bowerhouses

1736, Feb. 24.
Case No. No. 3.

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On the interpretation of the word “possession” in the act 1695, anent fraud of apparent-heirs, the subject being an improper wadset with a back-tack, Lord Haining, Ordinary, having found that the reverser's possession was the possession of the wadsetter's apparent-heir, and that the liferenter's possession was also the apparent-heir's possession,—the Lords altered the interlocutor, and found the heir's possession of the back-tack duty relevant to subject the next heirs to his onerous debts and deeds, and found the liferenters possession not relevant. They waved determining, Whether the assignee of the apparent-heir's possession was relevant.—I8th December, 1733.

The Lords found possession of the back-tack relevant; 2dly, As to the 400 merks, remitted to the Ordinary. 3dly, Repelled. 4thly, Found possession must be proved. 5thly, Found the userenter's possession not sufficient.—23d January 1734.

The Lords found sufficient evidence of George Johnston's possession. We thought, both that there was no need post tantum temporis to prove the nomination, and though there had been no nomination, yet possession being facti, they thought a protutor's possession sufficient.—24th February 1736.

*** The case Boyle against M'Aul, 26th June 1745, here referred to, is thus mentioned:

The Lords gave the like interlocutor, as 23d January 1734 and 24th February 1736, Johnston against Steel, and refused a reclaiming bill against Arniston's interlocutor, and adhered unanimously.