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Scottish Court of Session Decisions >>
Grant v Grant. [1683] Mor 9212 (00 March 1683)
URL: http://www.bailii.org/scot/cases/ScotCS/1683/Mor2209212-065.html Cite as:
[1683] Mor 9212
A person in possession by a voluntary deed cannot invert this possession, in prejudice of the Granter. The same holds with regard to legal Disponees.
Grant v. Grant
1683.
March. Case No. No 65.
Found in conformity with Earl of Annandale against Scot, No 64. p. 9211.
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George Grant, as having right to several expired apprisings of the lands of Kirdells, pursues a declarator of expiring of the legal. Alleged for Colonel Patrick Grant, who had right to the reversion of the lands, That the pursuer was satisfied and paid by intromission with the rents of the lands, within the years of the legal. Answered, That any intromission he had was by virtue of a factory from the donatar of Grant of Kirdell's liferent escheat, who had obtained a decreet of special declarator against the defender, both for the bygone rents, and in time coming, which gift was preferable to the apprising. Replied, That the pursuer having entered to the possession, and intromitted with the rents several years before the gift of escheat, he cannot ascribe his intromission to the gift of escheat, as having a factory from the donatar, especially seeing it is offered to be proven, by the donatar's oath, that the gift was acquired to the defender's behoof; and it appears that the decreet recovered at the instance of the donator against him, was by collusion, it being only in absence; and the defender omitted to propone his competent exception, that he being bona fide possessor, he could not be liable to the donatar for bygones; and the gift being acquired to the defender's behoof, he cannot make use thereof to invert his possession; but his intromission must be ascribed to the apprising, as the most sovereign right, and sors durior, to stop the expiring of the legal.——The Lords found the pursuer having entered to the possession, by virtue of the apprising, he could not invert the possession, and ascribe the same to the gift of escheat, and that therefore his possession must be ascribed to the apprising.
Fol. Dic. v. 1. p. 599. Sir P. Home, MS. v. 1. No 462.
