Scottish Court of Session Decisions

Subject_1 POSSESSORY JUDGMENT.
Subject_2 SECT. IV.

Effect of a Possessory Judgment.
1581. June.

Glenham
v.
Dunlop

Case No. No 24.

Long possession, with a habile title, cannot be taken away by way of exception of nullity, but ust be reduced.

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The young Laird of Glen warned one Dunlop to flit and remove from a certain piece of land of the patrimony of the abbacy of K. It was answered by the defender, That he had been in possession, by the space of 20 or 30 years, by virtue of a title and feu-charter, with precept of sasine following thereupon. To this was answered, That the author of the defender's title long before had made resignation of the right and title in favour of the pursuer's author, and so being denuded of the property of the said lands, could not thereafter make disposition to any other person; and so the feu-charter alleged by the defender was null of itself, given and made a non habente potestatem. To this was answered, That the defender's title, with so long continuance, and not interrupted, could not, however it was, be taken away by way of exception, but behoved to abide reduction. The matter being reasoned among the Lords, some were of that opinion, that the nullity of the title might come in by way of exception, according to act of Parliament, and the last practique admitted betwixt John Carnegy and one Gairne: Alii Dominorum in contraria fuerunt opinione, that the defender's title, with long possession following thereupon, could not be holden as null of itself, or null of the law, but behoved to be declared null, et differentia ponebant inter hoc quod est ipso jure nullum, et quod est decreto judicis annullandum argurnento et similitudine sententiæ a judice latae; nam si sententia contineat manifestam ineptitudinem, aut sit contra jus constitutionis, non opus est reductione, et est ipso jure nulla, ut habetur, C. Quando provocare non est necesse, L. 2. Secus si sic lata contra jus litigatoris et nullitas non fuerit manifesta ut in predicta, L. 2. The Lords, after long reasoning, for the most part, pronounced, that, in respect of long and continual possession, he ought not to flit and remove, the title standing unreduced. Dominus favorabiliorem existimabat rei causam propter longissimam temporis possessionem, licet de jure Scoriæ non admit-titur præscriptio, nisi in casibus in actis Parliamenti expressum nominatis, tamen uti habetur longissimi temporis possessio 30 aut 40 annorum cum titulo justo, præscriptio procedit, et via acticnis, et non exceptionis, jus litigantis tollitur.

Fol. Dic. v. 2. p. 89. Colvil, MS. p. 304.