Date of Decision: 15 Nov 1771
Abstract: William Park of Langlands, pursuer, claims that the lands of Barkip belong to him. Robert Craig Sr., defender, claims that he has the right to possess half of the lands of Barkip based on a heritable bond dating back to 1726. William Craig, brother of Robert Craig Sr. had the other half but after his death, his oldest son Robert Craig Jr. inherited it. William Park of Mainshill, the pursuer's father, granted a heritable bond to John Hamilton of Auchinvole. This bond apparently stipulated that Park's ancestors would give up the lands of Barkip if the bond was not paid on time. The bond was due in Martinmas 1732. Park claims that the bond was paid in part. He argues that the defenders only have an encumbrance on the lands of Barkip in the form of a debt, and not a right in the lands themselves. Park sets forth a distinction between "termly failzies" (real property obligations) and "ordinary penalties" (personal obligations). Park alleges that the process that put Craig in possession of the lands of Barkip was improper, thus he brings an action of reduction and declarator of extinction of the adjudication to defender.
Subjects: Adjudication, Land dispute, Title

Published Report

William Morison, The Decisions of the Court of Session (1811), Adjudication App. Pt. 1 P. 14 Sir David Dalyrymple of Hailes, Decisions of the Lords of Council and Session, from 1766 to 1791 (1826), 444

Litigants

Pursuer:
Dr. William Park, Second son of William Park of Mainshill and younger brother and heir of John Park
Defender:
Robert Craig Sr., Brother of William Craig
Robert Craig Jr., son of William Craig

People or Organizations Associated with Case

Advocate for Pursuer:
George Fergusson, of Hermand, Lord Hermand
Advocate for Defender:
Robert Blair, of Avontoun, Lord Avontoun
Lord Ordinary:
James Burnett, Lord Monboddo
Named in case documents:
William Park, Father of petitioner William Park
John Park, Brother of petitioner William Park and eldest son of father William Park