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Scottish Court of Session Decisions >>
Stuart v Sharp. [1591] Mor 13784 (00 1591)
URL: http://www.bailii.org/scot/cases/ScotCS/1591/Mor3213784-005.html Cite as:
[1591] Mor 13784
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Colonel Stuart, cessioner and assignee, constituted by John Steil to his liferent of the lands of Houston, warned certain tenants to flit and remove. Excepted, That they had tacks for terms to run, from them who had right to set them, viz. Mr John Sharp, who was heritable proprietor of the said lands, and who had been in possession of them, he and his authors, for the space of 38 years. Replied, That any infeftment Mr John, or his authors had, the same proceeded from Matthew Hamilton of Milburn, unto whom the cedent, John Steil, disponed these lands, with reservation of his own liferent, and so Mr John, or his authors, could be in no better case than he to whom the first alienation was made. Duplied, That according to the common law, and daily practice, the defenders, and their authors, being so long in possession, by virtue of titles standing unreduced, without any reservation of liferent, they could not be compelled to enter in question of their rights and titles, but behoved gaudere privilegio interdicti, uti possidetis. To all this it was answered, That Mr John Sharp could never be heard to say against the reserved liferent of John Steil in Matthew Hamilton's infeftment, because he had used the said infeftments judicially, and had obtained decreet and sentence by virtue thereof, in so far as the Lords had decerned a reversion given by John Hamilton of Shawton, (who was author to Matthew) to appertain to him, tanquam jus supervenient et quod accreverat illi, because he had bought the lands; and so having both judicially confessed the said liferent, and having allowed the infeftment whereinto it was reserved, and having also reported commodity by virtue thereof, he behoved ex necessitate to abide by the same, and consequently to fulfil the reservation of the liferent specified therein. The Lords, in præsentia Regis, admitted the exception qualified with the 38 years possession. Nonnulli Dominorum contra.
