Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Laird of Drumquhashill v. Cleland
Date: 17 July 1628 Case No. No 45.
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A sasine given 40 days before Whitsunday, although given after the warning, was sufficient to pursue removing by reason the pursuer was retoured.
Fol. Dic. v. 2. p. 310. Auchinleck, MS. p. 210.*** Durie reports this case:
1628. July 17.—In a removing, the L. Drumquhashill against Sir James Cleland, the Lords sustained the warning and summons and process of removing, albeit that at the time of the warning the pursuer was not infeft nor seised, seeing he was seised 40 days before the term, to the which the warning was made, which sasine proceeded not upon a retour, but upon a precept of clare constat given by the Duke of Lenox superior, and which, albeit it was not of a date anterior to the warning, yet being being 40 days before the term, as said is, was sustained.
Act. Cunninghame.Alt. ——.Clerk, Gibson
July 23.—In the removing, Laird of Drumquhashill against Cleland, mentioned 17th July 1628, the Lords found the exception relevant against the warning, that the same was null, because it was not executed at the parish-kirk where the lands lay, in so far as the teind-sheaves and other teinds, both parsonage and viccarage of the said lands, are paid to the parson of the kirk of to whom the same pertains, and are noways paid to the titular of the kirk where the warning is executed, and that he hath no right thereto, whereby the said lands must be found to lie in that parish where they pay their teinds, and consequently the warning not being executed there, must be null; which allegeance was found relevant, notwithstanding of the reply, bearing, “That the indwellers of the lands libelled have had continual repair past memory of man, and went to the kirk where the warning was executed, and hear continually the word and preaching there, and receive baptism and the Lord's Supper and marriage there, and their dead are buried in the church-yard there,” so that they must be reputed parishioners there; and the warning at the kirk being ordained that the persons warned get knowledge thereof, that was the surest way to make it come to their knowledge, it being done at the part where they only resort; which was repelled, and this qualification not respected to sustain the warning.
December 4—In a removing, L. Drumquhashill contra Sir John Cleland, the defender defending himself with a disposition of the lands libelled, from Lodovick Duke of Lennox, with charter and sasine thereon, and sixteen years possession conform thereto, and that his author was in possession also before him; this exception was repelled, and the pursuer's reply was admitted, and the pursuit sustained, viz; that he was infeft by a precept of clare constat, by the now Duke of Lennox, heir to Duke Lodovick, granter of the excipient's right, which precept is given to him as heir to his goodsir, who was infeft by umquhile Matthew Earl of Lennox in the lands libelled, and that his said goodsire and grandsire were in possession thereof all the days of his lifetime. This reply was sustained, seeing the defender alleged not that his author was infeft in the lands; and albeit he alleged so many years possession, and that both parties rights flowed from one author, and that he had a standing infeftment, which could not be taken away summarily in this possessory judgment without reduction; yet the same was repelled; in this same judgment in respect of the reply, without necessity to reduce.
December 10.—In the action, L. Drumquhashill against Sir James Cleland, mentioned the 23d July 1628, the pursuer, as infeft in the lands of Dormondside, upon the Duke of Lennox's precept of clare constat, as heir to his goodsire, who was infeft therein, craving removing, and the defender alleging a a right granted to him of the lands by umquhile Lodovick Duke of Lennox, to whom the granter of the pursuer's precept was heir, and by virtue thereof thirty years in possession; this exception was repelled, notwithstanding this possessory judgment, in respect of the reply made by the pursuer, that his umquhile goodsire was infeft by umquhile Matthew Earl of Lennox, and by virtue thereof in possession the time of his decease; and he being received by precept of clare constat, as heir to him, and being also retoured heir to him, whatsoever right or possession was acquired by the defender since his goodsire's decease, cannot prejudge his right, seeing the Earl of Lennox was denuded before by the right granted to his goodsire who died in possession. This reply was admitted, albeit the excipient alleged, that there were diverse others condescended on by him in possession of the said lands diverse years before the decease of the pursuer's goodsire, and that be alleged that in this possessory judgment his rights clad with possession should be maintained, while his right were otherwise taken away in some ordinary pursuit; which was repelled, and the pursuer preferred in his reply, offering to prove that his goodsire continued possessor to his decease.
