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Hunter v His Tenants. [1630] Mor 1338 (14 January 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor0401338-059.html Cite as:
[1630] Mor 1338
Whether Possession of a Part validates as to the Whole.
Hunter v. His Tenants
Date: 14 January 1630 Case No. No 59.
In a competition betwixt a prior base infeftment, and a posterior public one; the latter having never attained possession, but the former having possessed the greater part of the lands; this was found sufficient to defend, against the public infeftment, for the lands of which the defender was never in possession; the infeftment being indivisible.
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In this action, mentioned 16th December 1629,* the pursuer's infeftment being public, the defender alleging a base infeftment of lands, whereof the lands libelled were acknowleged to be a part by both parties; which base right was anterior to the pursuer's public right, and by virtue whereof he was in possession many years of a part of the lands contained in his infeftment, (for the infeftment was of a quarter of the lands of Cadislie,) and the rest which he possessed not, viz. the lands libelled, he alleged pertained to him by that same right of his prior infeftment; and the tenants possessors, now defenders, ought not to be decerned to remove at this pursuer's instanee, seeing he allowed that possession.—And the pursuer replying, That albeit the defenders base right was anterior to him, and clad with possession of a part of the lands, yet the same ought not to defend against his public infeftment for these lands now libelled, whereof he was never in possession.——The Lords found, That the base right being prior, and clad with possession of a part of the lands therein contained, the possession being of more than the half of the lands, was sufficient to defend against the pursuer's public right, for these lands libelled, whereof the defender was never in possession, as well for the lands whereof he was in possession; and sustained the same to assoilzie the defenders; albeit they had never been the defenders tenants; nor never had acknowledged him before the warning; nor never had paid him any duty; seeing he now allowed their possession; and found, that possession of the most part of the land contained in his infeftment, was sufficient to sustain the same for the whole therein contained, the same being allenarly of one quarter of the land, and not of diverse tenements; and found, that the same was enough to sustain the infeftment, which was not divisible.
Act. Baird.Alt. Belshes & Hart.Clerk, Hay.
Fol. Dic. v. 1. p. 91. Durie, p. 480.
