A sasine of burgage lands without a retour, found a sufficient title to pursue reduction.
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One Houston being seased in a tenement in the town of Dumfries, as heir to his mother's brother's oye, cognosced and tried by an inquest before the town, pursuing thereupon for reduction of a disposition of the said tenement, made by his said predecessors, to whom he was cognosced nearest heir, as said is, to the said defender; the pursuer's sasine being quarrelled as null, because it flowed not upon a retour past the Chancery, without which had preceded, to have been the warrant of the sasine, no process could be granted for reducing of the defender's rights, especially the pursuer not being in possession; for albeit the same might be sustained to produce action for recovery of mails and duties, against naked possessors sine titulo, or to continue and retain possession, or to seek removing; yet it could not be a title in petitorio to reduce another party's heritable right, and could not instruct this pursuit active;—the Lords repelled this allegeance, and found the sasine sufficient to produce this action, seeing the same was not pursued to qualify the pursuer's heir, but upon his sasine, as infeft in the lands controverted; which, albeit it was given to him as heir, yet the controversy was for that land, wherein he was infeft thereby, and not if he was heir thereby; for a sasine upon a precept of clare constat would have produced the like action to dispute upon that subject contained in the sasine which gave right to the lands, except it had been elided by one having a better right.
Clerk, Hay.
Fol. Dic. v. 2. p. 264. Durie, p. 527.
