The heir of line, as creditor to the defunct, may insist directly against the heir of conquest, provided he himself renounce to be heir.
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By contract betwixt umquhile James Fairlie and William Fairlie brethren, every one of them is obliged, that in case they die without heirs of their bodies, the survivor should succeed to the lands and heritage of the deceased; and James being deceast without bairns, William, who was the youngest immediate brother, craves this contract to be registrate against the daughter and heir of umquhile John Fairlie, who was immediate elder brother to the said James, and so who was heir of conquest to him; wherein the Lords found, that the heir general and of line, needed not to be called in this registration, as use is in all pursuits against heirs of conquest, which are not sustained, except the heir of line be first called, and discust; but it was not found necessary in this pursuit, seeing he himself, who pursued the registration, was that person who would be general heir, and of line, he being the younger brother, and so he could not call himself, because he renounced to be heir to him; therefore the process was sustained at his instance against the eldest brother's daughter, who was heir of conquest; whereas, if he had not renounced, he could not have pursued this action, being heir himself, and so that person who ought to fulfil the contract to himself, whereby it would have been confounded.
Act. Nicolson et Aiton.Alt. Advocatus et Stuart.
Fol. Dic. v. 1. p. 245. Durie, p. 533.
