Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Elphingston v. Guthrie
Date: 20 January 1625 Case No. No 38.
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In an action of removing, pursued by George Elphingston of Salines against Bethia Guthrie, his brother's relict, it was excepted by the defender, That the pursuer's sasine produced could not instruct the summons, it being given long after the warning, and after Whitsunday. Replied, That it was sufficient to give him action of removing, in respect it did depend upon a precept of clare constat, given by his superior to him, as heir to his brother, before the warning, and should be drawn back thereto. The Lords found, that a sasine, proceeding upon a precept of clare constat, could not be drawn back to the date of the precept; because it hath no other warrant but the naked assertion of the superior, which cannot prejudge any third party; it being otherwise in a sasine proceeding on a service, this being more public and authentic.
Fol. Dic. v. 2. p. 304. Spottiswood, (Removing.) p. 276.*** Durie reports this case:
In an action of removing, pursued by Elphingston of Salines against Bethia Guthrie, the Lords found the sasine produced by the pursuer, for his title, not to be a sufficient right, whereupon to seek removing upon that warning and title; because the sasine was given by virtue of a precept of clare constat of the superior's, which precept and sasine were both after the term, before the which the warning was made; so that he neither being seised before the term, nor obtaining the precept before the same, he had no right in his person to warn; and albeit the sasine was given to him, conform to the precept foresaid of clare constat, as heir to his brother, and so thereby, the pursuer replied, That the right which was in his brother's person, and whose sasine of the lands he produced, was transmitted in the person of the pursuer, as his heir of blood, and so that the same should be drawn back to the time of his brother's decease, this was nor respected, but repelled; because the precept of clare constat which was the ground of the sasine, would never make the pursuer heir to his brother, valuably to prove him heir to him active, albeit it was enough to prove against him passive; for albeit the sasine, by virtue of the precept of clare constat might be enough to maintain the person so infeft in possession of the lands, or to give him action against any who had right flowing from that author, yet the Lords found, that such sasines will not furnish actions to them for any other thing, which they might seek active, as heirs thereby to their predecessors: But the Lords find, that if this sasine had proceeded upon a retour, law-fully serving any person heir to their predecessor, albeit the sasine following thereupon be after the term of the warning, yet that the same ought to be drawn back, and would, in such cases, sustain pursuits of removing moved thereupon.
