Execution at the instance of a singular successor, upon a decree of division of lands, which bad not been specially assigned, found to be incompetent.
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Mr John Finlason obtains decreet before the Sheriff of Edinburgh, dividing his lands of Killeith, from the lands pertaining to the L. Roslin; and appointing marches to be set by the sheriff, betwixt the said lands. The heritable right of the said lands, being thereafter disponed to James Donaldson and Gilbert Kirkwood, they, and the said Mr John, obtainer of the sentence, charge the sheriff to in-put the march-stone, conform to the decreet; which being suspended, Mr John Finlason was debarred with horning; and the said James Donaldson and Gilbert Kirkwood, craving execution at their instance, as succeeding to the right of the lands, by their heritable infeftment, and who, consequently, had the benefit of that sentence competent to them, hoc ipso, that they were heritors of the lands.——The Lords found, that no execution could pass at their instance, upon the said decreet, except they had been, per expressum, made assignees thereto; or else, that they had obtained the same first transferred in their persons, without which they could not seek these charges, or summar execution, upon that sentence. See July 25. 1626. James Stuart, (No 3. h. t.) and March 25. 1623. L. Hunthill.*
Act. King.Alt. Foulis.Clerk, Gibson.
Durie, p. 62.
* The case here referred to, L. Hunthill against Rutherford, 25th March 1623, which is reported by Durie page 61, in a manner so singularly indistinct, that, for the fake of perspicuity, it will be necessary to have recourse to the alphabet in stating it; was to this effect.
Lands having fallen to A. by recognition, he was infeft, and obtained decreet of removing against B. the tenant. Thereafter A. conveyed to C., who was infeft by resignation. C. pursued an action of succeeding in the vice against D., who had entered to the possession of B.—D. alleged C.'s conveyance and sasine, were not sufficient to give him either right to the lands, or a title to insist in this action; because they depended on the right of recognition of C.'s author, of which no declarator had been obtained; therefore the same, and all other subaltern rights depending upon it, were insufficient. This plea was repelled “in respect of the decreet of removing obtained, as said is by the pursuer's author, and of the pursuer's right, proceeding upon resignation of his author, concerning the validity whereof, the pursuer could not, in this judgment of succeeding in the vice, be compelled to dispute.”
