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1mo, The defender excepted against the citation, and alleged, That J. S. and J. T. tutors and curatory, were not summoned. The pursuer abode at the last execution of the wakening.
2do, Alleged, He ought not to produce the assignation called for to be reduced, because it was registered. Answered, He must show where it was registered. Ordained the defender to produce it.
3tio, No process for the lands contained in the pursuer's charter, and reserved in the sasine to the defender in liferent. Relevant.
4to, No process upon the sasine transumed, because it is transumed pendente lite, after the interning of the cause, to work against the defender, who had special interest; and he was never summoned to that effect. Alleged, That ought to be repelled, in respect of the decreet of transumpt standing, all parties having interest being called; and, further, the defender appeared by his procurator, and made defence against the transuming of the instrument. Repelled this allegeance. The Lords ordain the defenders, not called to the transuming, to allege presently wherefore it should not have been transumed against them, and ordained them to see the prothocal book. Afterwards the defender declared he had nothing to say against the transuming.
5to, The pursuer can have no interest to call for reduction and production of any infeftments of lands, except of A. because there are no other lands contained in his sasine. Answered, Not competent hoc loco against the production, after satisfying whereof let it be alleged against the reduction; and, further, the whole lands libelled, are lawfully united with the lands of A. which he offers to prove cum processu. Duplied, He ought to show the union instantly. The Lords admitted the union to be proved cum processu, and found that the sasine produced gave the pursuer action. Next alleged, That the pursuer should condescend upon the special time of the union, because, in that case, the defender would take it away by a relevant allegeance, viz. That the union is broken. Answered, He offers him to prove that the union was made in the pursuer's grandfather's time, by the superior, and the place of A. appointed for the taking of sasine there of the whole lands. Probation in this with the former allegeance of union, reserving to the defender his allegeance of disunion contra producenda.
Afterwards duplied by the defender, That the allegeance anent the union made by the superior should be repelled, unless the pursuer will say, that he is vassal to the said superior; for the lands of A. being disponed to the pursuer by his father, (who was vassal to the Laird of D.) to be holden of himself, cannot profit this pursuer any thing in regard of the union, except they had been disponed to him holding of the superior. Triplied, That the whole lands of A. being disponed to him, and he having received sasine by his father propriis manibus thereof, likeas the same is confirmed by the superior, he must have the benefit of the union, Qnudruplied, That he being only seased in a part, and the confirmation being only of that part wherein he was seased, that confirmation is not sufficient to infer an union. The Lords repelled the allegeance hoc loco, and, notwithstanding thereof, ordained to exhibit, but prejudice of the proponing and discussing of the same allegeance in the cause, after satisfying of the production.
The defender protested, that notwithstanding the production he may be heard to oppone against the interest of the party, and sicklike, that it be without prejudice of his other defences.
Excepted against the reduction, 1mo, The sasine which gives the pursuer action to reduce, is transumed lite pendente, and the defender, who had special interest, not summoned to it. Replied, Upon the decreet of transumpt standing, all having interest being called in general, and certain in special. Repelled.
2do, The sasine transumed can give no action to reduce the infeftment of such lands as are not specially nominate therein, which are these, viz. —— Replied, That the pursuer passeth from reduction of all infeftments not specially expressed in his sasine.
3tio, The sasine can give no action to reduce the infeftment of liferent given to one of the defenders, of lands specially reserved in the pursuer's Transumed sasine. Replied, He quarrels no such liferent reserved, but that which is granted after the pursuer's sasine, which he may by virtue of his fee granted before: As for the other specified in his sasine, he quarrels it not because it affirms his fee, but only posterior liferents. The allegeance was repelled in respect of the reply.
4to, The sasine can give the pursuer no action to reduce infeftments of any other lands therein specified, except of the lands of A. whereof sasine was only taken, especially no union being shown or produced. Replied, The same given at A. is sufficient for the whole lands before specified in the sasine; for if the pursuer's father, as superior, had directed his precept for giving sasine to this pursuer upon the lands of A. which should suffice for the whole remanent lands, the same sasine would have been sufficient for all, nam declaratio voluntatis superioris is as good as a sasine, multo magis the personal presence of the superior giving sasine propriis manibus must be good for the whole lands specified, and infer an union. Duplied, That the lands specified in the pursuer's sasine lying discontigue, having divers other lands interjected, sasine taken on a part thereof will never be extended to the whole without a special union. The last allegiance was likewise repelled.
5to, No process upon the pursuer's sasine, because it bears to be given secundum tenorem chartæ charm conficiendæ, and the defender will offer to prove that the charter, granted by the pursuer's father to him, was to be holden of the superior: Likeas, the pursuer hath accepted a confirmation of the same from the superior, long after the infeftments made to these defenders by the pursuer's own author; ergo as a charter given to be holden of the superior without confirmation, will neither give action nor exception, multo minus shall a charter accepted from the self same author with the defenders, to be holden of the superior, and not confirmed till after the defender's infeftments, give the pursuer action to reduce their infeftments preceding his confirmation. Answered, That ought to be repelled, in respect the sasine which the pursuer useth for his title, bears only to be given secundum tenorem chartæ conficiendæ, not specifying of whom the lands should be holden; for contrarywise, by the sasine, it is clear that the lands should be holden of the granter, seeing it bears no special holding: And, further, the pursuer's confirmation must be drawn back to the sasine which preceded long the defender's infeftments. This allegeance was repelled.
6to, Alleged, That the reason of reduction, against the defender's assignation to certain reversions founded upon a prior assignation of the same made to the pursuer, is not relevant because, before the date of the pursuer's assignation, the defender was made assignee to certain reversions, which first assignation bore this clause, That the same should be reiterate and renewed at the receiver's pleasure, by virtue whereof it was renewed; and this assignation produced, albeit it be posterior to the pursuer's in date, yet it depends upon the former, which two assignations he conjoineth in one. Answered, Not relevant, because, when produced, it bears no mention nor relation to the former. Probation in this allegeance.
7to, The defender had intimated his assignation long before the intenting of this cause, and before any intimation made by the pursuer of his assignation; so that, as in double poindings, agitated upon two assignations, the first lawfully intimated will be preferred, although posterior; so this last assignation first intimated cannot be quarrelled or reduced by one not intimated. Answered, Notwithstanding the first assignation must be preferred, because res sunt adhuc Integræ, the lands not being yet redeemed; and the cedent could not grant a new assignation to any, being denuded before. Probation in this allegeance too.
Then it was replied to this last exception by the pursuer, That he had recovered by virtue of his assignation the most part of the reversions contained therein, which assignations were made to his cedent before his said first assignation to the defender, and that upon alienations made before the pursuer's sasine libelled, Duplied by the defender, Not relevant, because general, not condescending on the number of the reversions recovered, and the time when. Find the reply relevant for so many of the reversions as are in the pursuer's hands, he being special upon them.
The pursuer produced eight reversions, whereon he grounds his reply. Further alleged by the defender, The pursuer should condescend on the time of the recovery, and from whom; for albeit the cedent could not be heard to propone this, yet the defender, being a third person, who did intimate first assignation, has good right to try how they came into the pursuer's hands, and to say against them. Find the pursuer needs not to condescend on the time or manner of the recovery of these reversions, in respect they are in his own hands.
