Privilege of selling the predecessor's estate by a public auction.
William Yule v. Robert Ritchie
Date: 10 February 1758 Case No. No 45.
In a reduction of a disposition by an apparent heir not three years in possession, the possession of the disponee for three years was found equivalent.
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Margaret Miller, while she was apparent heir, and before she had been three years in possession, disponed a tenement of land to Ritchie.
Ritchie entered to possession, and continued in it more than three years.
Yule, the heir of Margaret Miller, brought a reduction of this disposition, as granted by an apparent heir not three years in possession.
Ritchie's defence was, That his possession must be deemed the possession of Margaret Miller, the disponer, so as to make her, in the eye of law, to have been three years in possession.
Answered for Yule; The construction contended for by the defender, is contrary to the reason of introducing the exception from the common law. The exception was introduced merely in respect of the bona fides of those who had been tempted to contract with a person whom they saw three years in possession; and whom they therefore had reason to think was duly vested in the subject; but this will never apply to a person contracting with one not three years in possession, even though the contractor himself should remain twenty years in possession after that. His after possession will not give him that bona fides which he had not at first; and the rule of law takes place, Quod initio vitiosum, tractu temporis convalescere non potest.
In the next place, As the exception in question was introduced in the face of the common law, which allows no person not infeft to dispone, courts cannot, in a statute correctory of the common law, go beyond the letter of the statute. The statute requires a three years possession by the apparent heir; and a court cannot, in place thereof, substitute a three years possession by the disponee.
‘The Lords assoilzied from the reduction.’
Act. J. Dalrymple.Alt. Dav. Rae.
Fol. Dic. v. 3. p. 259. Fac. Col. No 96. p. 172.
