Scottish Court of Session Decisions

Subject_1 HEIR APPARENT.
Subject_2 SECT. I.

Entitled to continue the Predecessor's Possession.

The Honourable Mrs Marianne Mackay and Colonel William Fullerton
v.
Sir Hew Dalrymple, and Others

Date: 9 March 1796
Case No. No 7.

Notwithstanding the dependence of an action of reduction and declarator of irritancy brought against a proprietor and his heir-apparent, the latter, upon the death of the former, is entitled to continue possession till decree be obtained.

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The honourable Mrs Marianne Mackay, with consent of her husband, Colonel Fullerton, in 1793, brought a reduction and declarator of irritancy against John Hamilton, (who had been infeft in the estate of Bargany upon a charter of resignation in 1742, and had been in the uninterrupted possession of it ever since,) and against Sir Hew Dalrymple, his nearest heir both of law and provision, in which she narrated an entail of the estate executed by Lord Bargany in 1688; the manner in which the succession under it had devolved on the late Sir Hew Dalrymple, and his renouncing it in favour of his younger brother Mr Hamilton; from which she inferred, that the late Sir Hew by granting, and Mr Hamilton by accepting this renunciation, and thereby altering the course of succession, had incurred an irritancy for themselves and their descendants; that the pursuer, as next substitute to them, was entitled to the estate; and that the titles made up by Mr Hamilton in 1742, and a settlement made by him in 1780, upon which infeftment had followed, were null and void; and concluded, that decree of reduction and declarator should be pronounced accordingly.

The defenders produced Mr Hamilton's charter and infeftment in 1742, which, with the subsequent possession, they founded on as a title to exclude the pursuer by the positive prescription.

The Court, (9th February 1796,) repelled this defence, upon the ground of Mrs Fullerton's minority during a part of the time requisite for precription*.

Mr Hamilton died 12th February; and the pursuer immediately presented a petition to the Court, praying, that the estate might be sequestrated till the issue of the cause.

In support of this demand, she

Pleaded; As Mr Hamilton was in possession before the action was raised, he could not have been turned out of it till decree was pronounced. The dependence of the action, however, made the subject litigious; and as Mr Hamilton's death left the possesion vacant, no good reason occurs for preferring either competitor to the rents in the mean time, and therefore the estate should be taken into the hands of the Court till the merits of the cause be determined; Stair, b. 1. tit. 13. § 5.; b. 4. tit. 50. § 27.; 1769, Dickson against the Earl of Hyndford, voce Sequestration; 1795, Duff against Earl of Fife, See Appendix.

A person claiming the privilege of apparency must be called to the succession, not merely by the act of the person last in possession, but by the subsisting investitures of the estate; and, in this case, the entail 1688, according to which, as their warrant, the titles made up in 1742 and 1780 must be interpreted, did, in consequence of the irritancy which has been incurred, ipso facto exclude the defender from the succession.

Answered; It is admitted, that the late Mr Hamilton was entitled to retain possession till decree should be pronounced against him; and it is a settled point, that an heir-apparent, who, in law, is held to be eadem persona cum defuncto, is entitled to continue the possession of his predecessor; Bankt. vol. 2. p. 324. 377,; Ersk. b. 3. tit. 8. § 58.; b. 2. tit. 12. § 61.; Voet depositi, § 14. et seq.; Home contra Home, No 5. p. 5235.; Duke of Hamilton against Douglas, No 12. p. 3966. But it is impossible to figure a more complete state of legal apparency than that of the defender, both as being heir at law, and of the last investitures; while, on the other hand, the right of the pursuer consists merely in a title to insist in certain conclusions, the issue of which must at present be uncertain. Were this application, therefore, supported, the most groundless claims might have the effect of inverting possession, and the established privileges

* This point was not finally decided till Winter session 1796. See Sequestration.

of apparency be destroyed whenever the right of the predecessor was disputed.

The Lords unanimously refused the petition, upon advising it with answers, &c.

Lord Ordinary, Justice Clerk. Act. Solicitor General Blair, Tait, Hope, et alii. Alt. Geo. Fergusson, H. Erskine, Thompson, et alii, Clerk, Sinclair. Fac. Col. No 212. p. 500.