Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. III.
Private Knowledge of a Preferable Right.
Sir Andrew Agnew, v. Hawthorn of Wigg
Date: 15 July 1746 Case No. No 14.
An estate being destined to heirs male; whom failing, to a different series of heirs, the nearest heir of line of the last heir male, entered into possession. The heir of destination established his right by declarator. There being strong ground to suppose, that the heir of line was not ignorant of the destination, he was found to have no plea of bona fides, and to be accountable for the rents.
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Sir Andrew Agnew of Lochnaw, 1st May 1672, disponed to his brother William Agnew of Wigg, and his heirs-male and assignees whatsoever; which sailing, to return to the said Sir Andraw Agnew and his heirs-male, the lands of Polmallet and Oldbreck.
William Agnew, son to the disponee, died anno 1738, whereby the male-line failed, and was succeeded in the gross of his estate by Hugh Hawthorn, his grand-nephew by his sister, who entered also to the possession of these lands.
Sir Andrew Agnew, heir-male to the disponer, raised a declarator of his right to the lands, and a repetition of the rents intromitted with, in which the Lord Ordinary declared in his favour, and found he had right to the mails and duties from the citation, but made avisandum to the Lords, how far the bygone rents were bona fide percepti et consumpti.
Pleaded for the pursuer:—That unless there were a colourable title, there could be no bona fides; Stair, p. 175, at the beginning, 16th November 1633, Grant against Grant, No 24. p. 1743.
The pursuer's action was bereditatis petitio; the defender in which had no, right to retain the reaped fruits, l. 20. § 3. et l. 25. § 11. ff. de bereditatis petitione.
Pleaded for the defender:—He was universal heir, and entered to the possession of the estate, not knowing the succession to these two parcels was destined to go in a different channel; so that he possessed pro berede, which was a title of usucapion, l. 3. ff. Pro herede, and less than was sufficient to usucapion, was a sufficient title to acquire the fruits; Voet, num. 30. de acquiren. rer. dom.
To make one possessor pro herede, it was sufficient that he thought himself heir, l. 11. ff. de her. pet.
With regard to the lands of Oldbreck, the late Wigg was infeft therein, anno 1700, under the Great Seal, to him and his heirs whatsoever, upon the resignation of the Earl of Cassillis, which was a title to found the defender's possession upon.
Pleaded for the pursuer: That these lands were part of the Abbacy of Saulfeat, the feu-duties whereof belonged to the Earl of Cassillis as Lord of Erection; and Wigg having purchased from him his feu-duty, took the right in the form of a disposition to the superiority; but it appeared from the disposition, that the property, which alone could carry the rents, depended on another right.
On the first report of this cause, it was alleged by the pursuer, That Mr Hawthorn had made up titles in his person to the whole of his grand-uncle's estate, except these two parcels; in doing whereof he could not but discover the nature of the destination, and consequently that he had no right to them, and therefore had not attempted to make up titles.
On this it was remitted to the Ordinary, and again reported.
William, the original disponee, was infeft in the lands of Skeog, holden of the Earl of Cassillis, 1st June 1671.
He was infeft in Castlewigg, and some other parcels, 25th October 1671, on a charter from the Bishop of Galloway.
Sir Andrew Agnew disponed to him, 1st May 1672, Oldbreck and Pollmallet, on which no infeftment was expede.
William, his son, was served heir to him, 9th November 1695, in Castlewigg, &c. and infeft therein 11th May 1696. He Acquired the superiority of the lands of Skeog, lands of Dunance, and feu-duties of Oldbreek, from the Earl of Cassillis, and took the right to the whole, in the form of a disposition to the superiority, 12th June 1700, with this clause in græmio,“That the same should nowise hurt, or prejudge the rights and securities of the property of the said lands.” And, on the resignation in this disposition, expede a charter, under the great seal, whereon he was infeft 24th May 1701.
Afterwards he purchased the lands of Cutreoch, and some others, 24th March 1724, and 25th March 1725, in none of which he was infeft.
Mr Hawthorn was served heir in the whole lands contained in the retour 1695. and in the charter 1700, and also executed the procuratories relating to those lands wherein his predecessor was not infeft, and was infeft is the whole.
Pleaded for the pursuer: That from this state of the case, it appeared plainly the defender had been well-acquainted with the condition of the rights of the estate; and there could be no other presumption than that he knew he had no right to these two parcels, and so could not be in bona fide.
Pleaded for the defender:—It ought net to be presumed that he had made an accurate search into his predecessor's papers, and discovered the disposition 1672, whereon the pursuer had prevailed in his declarator: He had served heir in the lands contained in his predecessor's infeftment,; and the purchase of these lands wherein he had not been infeft, was recent, and consistent with his knowledge; and thus he entered upon the possession of the estate.
With regard to Oldbreck, his predecessor was infeft therein under the Great Seal, which was a colourable title.
There was no question put concerning the rents of Pollmallet; but concerning those of Oldbreek, urged in his favour, That it appeared he had made up his titles thereto, on the foundation of the charter 1700, whence it was to be presumed he had taken that for the title by which Agnew of Wigg possessed it, and consequently was in bona fide.
Answered: This argument would extend also in its consequences to Pollmallet, as proceeding on the supposition that he had not seen the disposition 1672; but, indeed, in making up his titles, he had done no more than was necessary for him to carry the feu-duties, to which he had right by that charter and disposition whereon it proceeded, which bore to be without prejudice to the rights to the property.
The Lords repelled the defence of bona fides.
Reporter, Elchies.Act. W. Grant. & Lockhart.Alt. A. Macdouall & R. Dundas.Clerk, Forbes.
Fol Dic. v. 3. p. 95. D. Falconer, v. 1. No 231. p. 158.
