A retour found a sufficient title, though without a sasine, to insist in an improbation of certain rights, affecting the lands to which the pursuer was retoured, he producing his predecessors's sasine.
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In an action of improbation pursued at the instance of the heirs of line of umquhile Lord Yester, against the E. of Buccleugh, for improving certain evidents of lands, to the which the pursuers were retoured heirs to their predecessors, the Lords sustained the pursuers interest and action, by production of their retour, albeit they had not been seased in the lands; which retour was found a title, whereby they might pursue improbation per se; for in this process the pursuers produced a sasine, but it being of a date posterior to the principal summons, the Lords found it could not be the title of that pursuit, and therefore sustained the retour for a title; the pursuers therewith producing a sasine of their predecessors of these lands, to whom they were retoured therein.
March 26.—In an improbation at the instance of Lo. Yester's Heirs, against the Lo. Buccleugh, the Lords found, That the pursuers had no interest to call the defender, for production of any writs made to him by the King, except the pursuers libelled and qualified that their right to the controverted lands flowed from the King; and found it not enough that the pursuers, being heritably infeft in the lands, had therefore interest to call for production and improbation of any writs which the defender had thereof, made to him by any other person whatsoever.
Act. Nicolson & Stuart.Alt. Scot.Clerk. Hay.
Fol. Dic. v. 1. p. 442. Durie, p. 59. & 63.
