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Robert Ker v Henry Ker. [1668] Mor 1338 (5 February 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor0401338-060.html Cite as:
[1668] Mor 1338
Whether Possession of a Part validates as to the Whole.
Robert Ker v. Henry Ker
Date: 5 February 1668 Case No. No 60.
A infeft his second son in an annual-rent out of his lands, corresponding to an accumulated principal sum; the one half of which was borrowed money, and the other his portion. Found, that the infeftment, if clothed with possession, as to the borrowed money, was public, in solidum: The son could not attain possession of the other half during his father's life.
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Robert Ker of Graden having infeft his second son Robert Ker in an annual-rent out of his lands of Graden and others, upon a contract betwixt them, whereby Graden for the sum of 6000 merks addebted by him to his son, viz. 3000 merks of borrowed money, and 3000 merks for his portion, (accumulatory, and extending together as said is,) was obliged to infeft the said Robert in 360 merks, as the annualrent of the said sum of 6000 merks; beginning the first term's payment of the half of the said annualrent, being for borrowed money, at the first term after the contract; and of the other half, being for his patrimony, after his father's decease. The said Robert the son, pursued a poinding of the ground for bygones, and in time coming, the terms of payment being past. Henry Ker, the pursuer's eldest brother, compeared, and alleged his ground could not be poinded, and that he was infeft therein by a public infeftment; at least that his infeftment was public by possession; and that the pursuer's infeftment was base.—It was replied, Imo, That the said Henry, his infeftment of the lands, was posterior to the pursuer's infeftment, and granted not only by a father to a son, a conjunct person, who, by the foresaid right, præcepit hæreditatem; and though he cannot be pursued upon the passive title of titulus lucrativus during his father's lifetime; yet his mouth is stopped, so that he cannot question any deed of his father, preceding his right; and that he is in the same case, as if his infeftment had been given with the burden of prior rights. It was further urged by the pursuer, That the defender condescending upon his entry and initium possessionis, he offered to prove that hie right was clad with possession before that time.—It was duplied, That his infeftment could not be clad with possession, but as to the annualrent of the 3000 merks of borrowed money; so that it was base as to the other 3000 merks of his portion.—It was triplied, That the infeftment was of an entire annualrent of 360 merks, as appears by the contract and sasine; and that the right being of an annualrent, though payment of the half of the same be suspended, the right being a joint and indivisible right, could not be ex parte private, and ex parte public.
The Lords found, That the infeftment of annualrent, if it should be proven to be clothed with possession as to the half, is public in solidum, and admitted the reply of possession: But as the second reply, viz. That the defender was bæres per præceptionem, and could not question any prior right granted by his father. The Lords found it of difficulty and consequence; and reserved the debate and decision until the end of the process.
Mr Thomas Lermont.Alt. Sinclair.Clerk, Hamilton.
Dirleton, No 154. p. 61.
*** The same case is reported by Stair:
Robert Ker of Graden having granted bond to Robert Ker his son, for 3000 merks of borrowed money, and 3000 merks of portion; for which sum he did infeft him in an annualrent of L. 240 yearly, suspending the payment of the one half of the annualrent till his death; whereupon Robert pursues a poinding of the ground:—It was alleged for Henry Ker, (the eldest son, who stands now infeft in the lands) absolvitor, because he stands infeft in the lands before this infeftment of annualrent, being but base, took effect by possession.—The pursuer answered, imo, That the defender's infeftment, being posterior, and granted to the apparent heir, without a cause onerous, it is præceptio hæreditatis; and if the father were dead, it would make the defender liable as heir; and therefore now he cannot make use thereof, in prejudice of the pursuer. 2do, The pursuer offered to prove, that his annualrent was clad with possession, before the defender's infeftment, in so far as he received the half of the annualrent, which is sufficient to validate the infeftment for the whole; seeing there are not two annualrents, but one for the whole sum; and seeing the pursuer could do no more, the one half of the annualrent being suspended till his father's death.
The Lords found this second reply relevant, and found the possession of the half was sufficient to validate the possession for the whole; but superceded to give answer to the former reply, till the conclusion of the cause, not being clear, that the defence upon the defender's infeftment could be taken away summarily, though he was apparent heir, without reduction upon the act of Parliament 1621.
