Scottish Court of Session Decisions

Subject_1 BASE INFEFTMENT.
Subject_2 SECT. VII.

Whether a Father's possession validates a base right in favour of his Son.

George Shein
v.
James Christie

Date: 30 June 1668
Case No. No 47.

A father granted, at the same time, two base infeftments to two of his sons, reserving in both his own liferent. In a competition betwixt singular successors in these base rights, the father's possession was found sufficiently to validate both, as in this case there was no room for the suspicion of simulation.

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David Christison of Bassallie, gave an infeftment to his eldest son, of the lands of Bassalie, and to his second son, of an annualrent of 86 merks forth thereof, both of one date, and both reserving the father's liferent. James Christie hath right by apprising, led against the eldest son, in his father's life, to the lands. George Shein hath right by adjudication, against the second son, to the annualrent, and pursues a poinding of the ground. It was alleged for James Christie, that Shein's author's right was base, never clad with possession, and so null; whereas his right was public by an apprising, and had attained to possession. It was answered, that the father's liferent being reserved, the father's possession was both the sons' possession, and did validate both their rights. It was answered, that a disposition by a father to his own children, reserving his own liferent, though infeftment follow, is always accounted simulate, and never accounted clad with possession, by the father's possession, as hath been frequently decided. It was answered, that albeit, in competition betwixt base infeftments, granted to children, and infeftments granted to strangers upon onerous causes; the childrens infeftment, though prior, and though reserving the father's liferent, uses to be preferred; yet here that holds not, for both infeftments are granted to children, both of one date, and neither of them to strangers, or upon onerous causes; and therefore the reservation here is without suspicion of simulation, and the father's possession must validate both the second son's annualrent, and the eldest son's property.

Which the Lords found relevant, and that the father's possession by this reservation, did sufficiently validate both the sons' infeftments; and that the possession of one after his death, or of any succeeding in his right, did not exclude the other, or his singular successor.

Fol. Dic. v. 1. p. 90. Stair, v. 1. p. 546. *** Gosford reports the same case:

David Christieson, heritor of the lands of Barsilly, did infeft his eldest son, and apparent heir, in the fee of the said lands, reserving his own liferent; as likewise, at that same time, did infeft his second son in an annualrent out of the same land, with the like reservation of his liferent, both which infeftments were granted base to be holden of himself. James Christie, writer to the signet, having comprised the right of the fee from the eldest son, as being infeft by the Earl of Rothes' superior, and George Shein having adjudged the right of annualrent from the other son, they did both pursue upon their several rights for possession.—The Lords preferred the adjudger, notwithstanding it was alleged that the compriser was publicly infeft, and in possession; because the Lords found, that the father, who was common author to both the sons, by reserving his own liferent, both the rights were clad with possession and became public; and being of different natures, were consistent, and had no respect to the infeftment granted by the superior, which was null, both the infeftments being base holden of the father.

Gosford, MS. No 12. p. 5.