Scottish Court of Session Decisions

Subject_1 PASSIVE TITLE.

Janet Lundie, of that Ilk
v.
Mrs Wilson

Date: 24 July 1752
Case No. No. 11.

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In 1696, James Lundie of Lundie got a gift of his estate as forfeited by the attainder of E. Melfont, his father, and was infeft, and after his death, his brother Robert served heir to him, and was infeft and possessed 17 years till 1716. But after his death, his son John was advised that E. Melfont had only a liferent, and that the fee was in Sophia his grandmother, and therefore liable for Robert's debt on the act 1695. Alleged, that he possessed as donatar to his father E. Melfont's forfeiture, who had only a liferent, and during whose life he had no right to possess as apparent-heir of his mother. Answered, The act does not distinguish quo titulo the apparent-heir possesses, if he possesses as proprietor, and thereby induces creditors bona fide to trust him, insomuch, that the purchasing that gift was by another clause of the same act a passive title in Robert, subjecting him to Sophia's debts, as if he had served heir to her; and the case would have been the same if he had purchased an adjudication or any other right of property. I repelled the defence and sustained the passive title. But on reclaiming bill and answers, the Lords altered the interlocutor, and in respect of E. Melfont's right of liferent, found that Robert's possession during the Earl's life, did not subject the next heir passing by Robert to his debts; but remitted to me to enquire whether Robert had possessed three years after the Earl's death. (See Dict. No. 91. p. 9749.)