Scottish Court of Session Decisions

Subject_1 MUTUAL CONTRACT.
Subject_2 SECT. VI.

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.

Glendinning and Maxwell
v.
Glendinning and Carsan

Date: 24 March 1685
Case No. No 66.

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The Lords advised the count and reckoning pursued by Glendinning and Maxwell, against Glendinning and Carsan; and they found, that a ratification of a wadset right of 3000 merks did not hinder nor debar the granter of the ratification to propone payment upon discharges given by the wadsetter, prior to the said ratification, seeing it was only given in corroboration of the said right; and found these discharges were valid and probative, being between master and tenant, though not signed before witnesses; and that the wadsetter having been once in possession, he could not invert it by designing himself in the discharges only as factor to James Chalmers, an appriser; for though James was preferable, yet the wadsetter should not voluntarily have ceded the possession, unless he had been legally put from it; and they found a note of a messenger's poinding some oxen not sufficient to instruct that the creditor poinded them; because it was not by way of instrument, nor were the letters of poinding produced.

Fol. Dic. v. 1. p. 598. Fountainhall, v. 1. p. 356.