An apparent heir being called in a reduction and improbation of a right to lands, granted to one of his predecessors, this dilator proponed by him was sustained, viz. that he was denuded of the lands in favour of another, who now stood infeft, and who was not called; altho' the right by the apparent heir to that person was upon a singular title, and had no dependence upon the right sought to be improven.
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In a reduction at the instance of the E. Kinghorn, against the L. of Grange Kirkcaldy, for reduction of an infeftment granted by the E. Kinghorn's forebears, designed in the summons, to umquhile Sir William Kirkcaldy of Grange, of certain lands of the barony of Kinghorn, pertaining to the said pursuer's predecessors, in the which process the defender was called as apparent heir to that person, to whom the said infeftment, now desired to be reduced, was granted,—The Lords found this alleged dilator relevant, proponed by the said defender, viz. that he was denuded in favours of George Foulis, who was heritably infeft in the same lands by a public infeftment, holden of the King's Majesty; and therefore they found no process until the said George Foulis were summoned to this reduction, he standing infeft in the lands. And so the Lords found, that the party infeft was a necessary party to have been cited to this reduction, albeit his right flowed from that apparent heir who was called; and that the right made to him was not depending upon that right which was here desired to be reduced, but was acquired by that person who was called as apparent heir in this process, from another ground, not flowing from the course of the infeftment quarrelled, and disponed again by him to the said George; so that it might appear, there was no necessity to have cited him, whose right depended not upon the right controverted in this process; and yet the Lords found no process, while he was summoned thereto. It is here to be observed, that an action of reduction against any who is called as apparent heir to his predecessor, whose right is quarrelled, is ever sustained; so that it appears more hard that any having right from the apparent heir should be found necessary to be cited, seeing the citation of the apparent heir's self is enough, albeit he be not infeft as heir, but if an infeftment to any who were called to hear that infeftment made to himself, desired to be reduced, eo casu any having a public infeftment from the person's self, whose right were quarrelled, may with reason be reputed a party to be cited. In this process George Foulis compearing, and desiring to be admitted for his interest, by virtue of his heritable infeftment, alleged, that no process ought to be granted in the cause, while the Clerk of register were summoned thereto, seeing the said George was denuded in his favours, whereupon the Clerk of register was infeft by a public infeftment. This allegeance was repelled, for the Lords found the said George could not be admitted for his interest, to propone this dilator upon a right made to him, of the which right he himself alleged he was denuded in favour of another, and so the Lords found, that he could not compear to stay process.
Act. Hope, Nicolson, et Rollock.Alt. Stuart et Aiton.Clerk, Gibson.
Fol. Dic. v. 1. p. 139. Durie, p. 290.
