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In a removing pursued by Hunter against certain persons, compeared one Hardie, and alleged, The defender could not be removed, because they were his tenants, he being infeft in the lands libelled; for the lands belonging to the Laird of Spottiswood, he disponed the same to Hardie in 1564, by a base infeftment holding of himself, by virtue of which disposition Hardie came in possession of a part of the lands disponed. Long after, Spottiswood dispones the same lands to Hunter's author, who was publicly infeft, holding of the King, and he now sought the tenants, who occupied that part whereof Hardie never came in possession, to be removed; and replied, That Hardie could not defend them, they never being his tenants; but, on the contrary, he offered to prove, that, notwithstanding of his base infeftment, they remained still Spottiswood's tenants, by payment to him of their duties, ever till the disposition made to the pursuer's author. Duplied, The defender being infeft in the whole, long before the pursuer, and in possession of a good part, now, when the pursuer, by virtue of his posterior infeftment, is seeking possession of the rest, he he may very well impede him. The Lords sustained the exception, in respect of the prior infeftment, (although base,) clothed with possession of a part, it being unum tenementum.
Spottiswood, (Removing.) p. 287.
*** Durie's report of this case is No 59. p. 1338. Base Infeftment.
