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Home v The Earl of Marr. [1673] Mor 10632 (11 December 1673)
URL: http://www.bailii.org/scot/cases/ScotCS/1673/Mor2510632-022.html Cite as:
[1673] Mor 10632
Subject_1 POSSESSORY JUDGMENT. Subject_2 SECT. III.
Interruption of Possession.
Home v. The Earl of Marr
Date: 11 December 1673 Case No. No 22.
A possessory judgment by tacks, or infeftment of teinds, found to be interrupted by inhibition at the kirk door, within the first seven years. See No 31. 6427.
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The Laird of Polwart having a tack of the teinds of Logie from the Prioress of North-Berwick, pursues for the profits of the teinds. It was alleged for the Earl of Marr, That, for his lands of Atray, his predecessors had tack from Queen Anne, as being a part of the abbacy of Dunfermline, and that he was infeft in his lands of Grange, cum decimis inclusis by the King, in anno 1615; and that he bruiked, by virtue of these rights, for many years, and so had the benefit of a possessory judgment, and could not be quarrelled without a reduction or declarator for bygones, or in time coming. It was answered, That a possessory judgment can only be attained by peaceable possession, without interruption, and the pursuer and his predecessors had constantly interrupted, by using inhibitions. It was replied, That inhibitions were no legal interruption, unless citation had been used thereon, seeing they were only used at the kirk door against all and sundry; and albeit they might interrupt any possession flowing from the inhibiter, yet they had no effect as to another progress of right, neither flowing from the inhibiter nor his authors.
The Lords found the interruption relevant by the inhibitions, unless before the inhibitions the defenders could instruct seven years peaceable possession, which giving the benefit of a possessory judgment, no posterior inhibition or citation thereon could take off.
The defender further alleged. Absolvitor, because he had the better right; for albeit the teinds of the parish of Logie were a part of the benefice of North Berwick, yet there may be teinds lying locally within the same parish, belonging to another benefice; and as to the right of divers benefices, both by the common law; and our custom, after the suppression of benefices, and the loss of their mortifications and rights, chief respect is had to what the benefice hath possest.
As to this point, the Lords granted a mutual probation to either parties to instruct, by the foundations, rentals, feus, or tacks, of the several benefices, and possession thereby, which benefice had the best right.
