Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.

Janet Lundie
v.
Mrs Wilson

1752, July 24.
Case No. No. 11.

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Robert Lundie of that Ilk became debtor in 1707 in a bond of 400 merks, and died in 1716, without making up titles to his estate, as heir to his mother Sophia; but was infeft in it as heir to his elder brother James, who it seems had been advised that the right of fee was not in his mother, but in the Earl of Melfort, his father, and therefore in 1696 got a gift of his forfeiture, and was infeft under the Great Seal. But after Robert's death, his son John passed by him and his elder brother, and entered heir to his grandmother Sophia, and was infeft, and on his death this defender James was served heir to him. Therefore Mrs Wilson sued him on the act 1695, as heir served to John, who had passed by Robert her debitor, who was not only 3 years but 17 years in possession, and served heir to his grandmother Sophia;—and the cause coming before me, I sustained the passive title, and found the defender liable. But on a reclaiming bill and answers, the Lords altered; and in respect that the Earl of Melfort had the liferent of the estate, found that possession during his life did not subject the next heir passing by Robert; but remitted to hear whether Robert had possessed three years after his death.