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The Old Lady Clerkington v Clerkington and the Young Lady. [1668] Mor 10646 (9 January 1668)
URL: http://www.bailii.org/scot/cases/ScotCS/1668/Mor2510646-045.html Cite as:
[1668] Mor 10646
Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. VI.
Against what Rights does it take place? - Runs not contra non valentes agere. - if competent against an Action of Warrandice? - Runs against Minors.
The Old Lady Clerkington v. Clerkington and the Young Lady
Date: 9 January 1668 Case No. No 45.
An annualrent has not the benefit of a possessory judgment against a prior annualrent.
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The old Lady Clerkington being infeft in an annualrent of seven chalders of victual out of the mains of Clerkington for thirty-six years bygone, she pursues a poinding of the ground. It was answered for the Laird and his mother, That the pursuer having been so long out of possession, cannot make use of a possessory judgment, but must first declare her right; 2do, The young lady is also infeft in an annualrent, and hath been (by virtue thereof) more than seven years in possession, and so hath the benefit of a possessory judgment, till her right be reduced, and cannot be dispossessed by the old lady's posterior infeftment.
The Lords repelled, both the defences, and found that an annualrent is debi tum fundi, and is not excluded, by possession of a posterior right, and needs no declarator and that an annualrerit hath not the benefit of a possessory, judgment against a prior annualrent.
