Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Herries and Cunninghame v. Lindsay
Date: 10 July 1628 Case No. No 44.
Found in conformity to Small against Tenants, No 31. p. 13266.
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In a removing, Herries and Cunninghame against Lindsay, the Lords sustained the pursuit upon a sasine, albeit the same was after the warning, seeing the sasine proceeded upon a charge given by the pursuer to the superior, who was charged upon a decreet recovered by the same pursuer, whereby the author of her right, viz. the heir of her husband, who, by her contract of marriage, was obliged to give her a liferent-infeftment in the lands libelled, for not fulfilling thereof was put to the horn, and his superior upon that horning was decerned to give her a precept of sasine, and for obedience of the decreet, the superior had given the said precept, and she was infeft by this sasine produced; which was sustained, albeit done after the warning, seeing the same was before Whitsunday subsequent to the warning, and the said contract, horning, and decreet, and charge given to the superior, all preceded the warning, and were reputed to be sufficient diligence to make the subsequent sasine to be drawn back to the time of the said diligence, which was done in due time before the warning, as said is. See Sasine.
Act. Oliphant.Alt. ——.Clerk, Scot.
Fol. Dic. v. 2. p. 306. Durie, p. 306.*** Spotttiswood reports this case:
In a removing pursued by Walter Herries, and Cunningham his spouse, against John Stuart, alleged by the Tenants, That the pursuer's sasine produced gave him no interest, because it was posterior to the warning, and so the Tenants were in bona fide not to remove, knowing that the pursuer, at the time of the warning, had no real right. Replied, That ought to be repelled, in respect of her diligence she had used to get herself infeft before the warning, viz. she had charged the heir of her first husband, who should have infeft her, and for his disobedience had got him decerned to lose the superiority of his lands during his lifetime; likeas, she had done the same diligence against the next immediate superior, viz. the Bishop of Galloway, and had obtained decreet against him; likeas further, she was infeft not long after the warning in May before the term. In respect of which concurrences, the Lords found the reply relevant.
Spottiswood, (Removing.) P. 284.*** Auchinleck also reports this case:
A woman obtains a charter from her husband conform to her contract of marriage. Her husband deceases before she got sasine. She obtains decreet against the heir to give her sasine. Upon his refusal, she charges the superior and she gets sasine before the term of Whitsunday; but after the warning made to her Tenants, she pursued removing. The Tenants excepted, That she could have no process upon that sasine, because she was not seised the time of the warning. The Lords sustained action upon the sasine, in respect of her other diligence, but reserved the modification of the violent profits to themselves.
