Scottish Court of Session Decisions

Subject_1 PART AND PERTINENT.

Kerr
v.
Struthers

1753, July 19, Nor. 21.
Case No. No. 1.

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Kerr as infeft in the lands and barony of Littledean, comprehending the lands of Maxtoun and Newthorn, pursued reduction and improbation against Struthers of his rights to the lands of Cakemuir and Kirklandside. Alleged, The pursuer produced no infeftment in these lands, and therefore had no title. Answered, They are part to New-thorn; which the defender denied. Woodhall pronounced an act for proving that they are part of Newthorn. By the proof it appeared that they were quite surrounded by the lands of Newthorn except on one side; and when the house or cottage upon the lands became ruinous, that the heritor lived in a cottage in the town of Newthorn, which seemed also to be a part of the defender's land; and since the defender brought no sort of evidence either by charters or infeftments, or even by witnesses, that they were reputed part of another tenement, or held of another superior, but rested his defence, that the pursuer had not proved them part of the barony; the Court thought the situation of the lands sufficient to presume that they were part of Newthorn, and therefore sustained the pursuer's title. 21st November 1753, Altered, and found no sufficient title.