An apparent heir may continue his predecessor's possession, and, being ejected, may sue an ejection, without being served heir.
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James Gib of C. pursued James Hamilton of Livingston for the violent ejection of him furth of the lands of B. and libelled, that his umquhile father, Robert Gib, was in possession, and after his decease, his umquhile mother continued in possession, as conjunct fiar, by the space of two years thereafter, and immediately after the decease of his mother, he continued still in possession, as heir and successor to his father. It was objected, That he could have no action to pursue as heir and successor to his father, because, at the time of the ejection, he was not served, retoured, nor seised in the lands, but his title and instrument of sasine produced was but in anno——, and so he had no title at the time of the alleged ejection. To the which it was answered, That first he libelled possession as heir and successor, and the possession only was in itself sufficient to have defended him from violent ejection; and also, his sasine, whereintil he was seised nearest heir to his father and mother retrotrahitur, and so having respect to the said James's possession, continued into his person after the decease of his father and mother, and his supervenient right of sasine, post litem inchoatam ex causa de præterito, his title ought to stand, and he has qualified sufficient title. The Lords found by interlocutor, That he had libelled possession, and his supervenient sasine; he had good action to pursue; and that possession with a supervenient title retrotrahitur.
