Competent to a Defender to found upon a third party's interest, or other argument, to show there is no ground of claim.
Sir Mungo Murray v. -
Date: 24 June 1629 Case No. No 13.
In a declarator of non-entry at the instance of the King's donatar against sub-vassals upon the vassal's lying out unentered, the Lords sustained this exception, that by a condition of the vassal's infeftment, the lands, in default of heirs-male, were to return to the Crown; which condition being purified, the lands are in his Majesty's person, and consequently are full, as the King needs not be infeft.
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In a general declarator of non-entry of the lands and Earldom of Athole, pursued by Sir Mungo Murray, it was alleged, 1mo, for my Lord St Colme's son, There could be no declarator of non-entry by the decease of Scott of Abbotshall, because there was none called to represent him. Replied, The excipient had no interest to propone that, unless he show and instruct some right and title in his person flowing from Abbotshall. Duplied, It was competent to any defender that was called, to propone any defence in general against the summons. “The Lords found this exception relevant, and competent to any of the defenders.” 2do, Alleged, All parties having interest are not summoned, viz. the Laird of Inchmartin, who is heritably infeft in certain of the lands whereof the non-entry was sought, and for verifying thereof produced his sasine. Replied, The dilator was not verified by the sasine produced, which is only the assertion of a notary, and could not prove Inchmartin to be the King's immediate vassal, unless the charter were likewise produced. Duplied, The sasine being granted upon precepts direct forth of the Chancery, is sufficient to instruct the dilator. The Lords found this exception relevant, and that it being only a dilator, the sasine was sufficient to instruct it, which would not have been thought if it had been a peremptory exception. 3tio, Alleged to the last dilator, No necessity of citing Inchmartin, because the pursuer declares he craves no non-entry by decease of Inchmartin, or any of his predecessors or authors, but only by the decease of the persons contained in his summons, from whom Inchmartin has no right, and therefore needed not to be summoned to this declarator. Answered, The declarator is not sufficient, unless it were declared, that nothing to follow upon this declarator shall prejudge Inchmartin in his right of the lands contained in his infeftment. Duplied, Seeing he declares that he craves no non-entry by Inchmartin's author's or predecessor's decease, that declarator removes the necessity of citation. The Lords repelled the allegeance against the citation, in respect of the declarator. 4to, Alleged, No declarator of non-entry by the decease of Balwery, as he who died last vest and seised in the lands of Athole, because there is action of reduction at the instance of Inchmartin, intented and depending, for reducing Balwery's infeftment, wherein if he prevail, that infeftment can be no ground to produce this declarator, and so that action of reduction is prejudicial, and should be first discussed. Replied, Not prejudicial, because dubius est eventus litis, and if Balwery's infeftment be reduced, then this declarator, and all that depends thereupon, will fall in consequence, in so far as it depends upon the decease of Balwery, so that Inchmartin is not prejudged by this action, which has dependence upon other grounds, and cannot be stopped upon the dependence of that action of reduction. The Lords repelled this allegeance. 5to, Alleged for Inchmartin, who produced his interest, No declarator of non-entry of the lands of Downie, &c. because the said lands are full by infeftments thereof standing in the excipient's persons and his predecessors for the space of thirty or forty years, so that the lands being full holding of the King, there could be no gift of non-entry granted by the King; at least, if there be any non-entry intervening between the excipient and his author's infeftment, that non-entry is declared, and the right thereof established in the person of Inchmartin, and so no declarator. Replied, The exception meets not the summons, wherein he craves only non-entry by the decease of the particular persons therein contained, which cannot be stopped by any infeftment standing in the person of Inchmartin; neither can this declarator of non-entry vacant by other mens decease, prejudge Inchmartin's infeftment; and therefore, unless it were alleged that the lands were full by infeftments of the persons libelled and their heirs, the exception should be repelled as not competent against the summons. Duplied, By the practique it is a good exception and sufficient to exclude non-entry, that the lands have been full for the space of forty years in whatsoever man's person. Triplied, Albeit the exception be relevant in persons of one descent and lineal succession, to allege the lands full forty years by infeftments of persons of the same race and descent, yet the same cannot be respected in this case, because it meets not the summons, wherein non-entry is craved by the decease of several persons from whom Inchmartin is not descended. The Lords repelled this exception, unless the excipient would allege his infeftment to have been clothed with possession, at least some years immediately preceding the intenting of this action. 6to, Alleged, No non-entry by decease of John Earl of Athole; because, by the condition of his infeftment, the lands returned to the King in case of failzie of heirs-male, which falling out by his decease, the lands eo ipso returned to the King without any other infeftment than he had jure coronæ; so that the lands being full in the King's person, there can be no non-entry by John's decease. Replied, 1st, Not competent to be proponed by any, but them who derive right from the said John or the King, as was decided between Francis Douglas and the Laird of Lee, (See Appendix.) Next, Not relevant to allege that the condition of the infeftment provided the lands to return to the King, unless it were positively alleged that the King has acknowledged the lands to have returned to him, either by apprehending possession thereof, or by disponing the same to some party; for, by the contrary, the King has disavowed the return thereof to the Crown by virtue of that provision, in so far as he has disponed the non-entry thereof by the decease of the said John. Duplied, 1st, Competent to be proponed by any defender to exclude the pursuer, although they have no right flowing from the King or the said John. Next, Relevant, for it is sufficient to purge the non-entry, to allege that the lands are returned to the King, qui adit hæreditatem jure coronæ, and needs no infeftment nor acknowledgement of the return, and the gifting of the non-entry cannot take away that title which is inherent in the Crown by the provision of the infeftment, and is as sufficient to purge this non-entry as if he were infeft. The Lords found the allegeance both competent to the defender, and relevant. 7timo, Alleged for the Vassals of the Earldom, No declarator in favours of the pursuer, because his name is borrowed for the behoof of John now Earl of Athole, who is son and apparent heir to the umquhile Earl of Tullibardin superior to them, and ought to enter heir to him, and therefore cannot crave a benefit through his own fault to the defender's prejudice, viz. to have the non-entry, which he procureth through his own lying out. Replied, The apparent heir may as well take the gift of non-entry as a stranger, and if the defender be prejudged thereby, he has a remedy of law to charge the apparent heir to enter, which if he refuse to do he may enter by the King, so that they cannot be prejudged. The Lords repelled this allegeance, June 25. 1629. 8vo, Alleged for Duncan Wemyss, No declarator of his lands, because he is infeft therein by the King with a gift de novo damus, including all non-entries, &c. and must stop his declarator, especially seeing he offers to prove, thar, since the date of his infeftment, he has been in continual possession thereof. Replied, Not relevant to purge any non-entry posterior to the said gift de novo damus, though it will take away all before, for the King could give no more than was vacant in his own hand the time of the said gift, and therefore he may gift any posterior non-entry, falling by the decease of any vassal after the infeftment, and the same gift ought to be declared. The Lords found this exception relevant. After this the pursuer protested, That in respect that his declarator of these last lands is stopped by proponing of this allegeance, he might have the benefit to reduce the rights whereupon this allegeance is founded, and to pursue for the mails and duties of the lands, and to make warning, sicklike as if his gift had been declared. Which protestation the Lords admitted. See Non-entry.
Fol. Dic. v. 1. p. 517. Spottiswood, (Non-entry.) p. 222.
