It was pleaded, that one could not renounce to be heir, because he had sold land belonging to the predecessor. Although he had been convened before super eadem re, as successor in general, it was found relevant to prove the allegeance now made, not formerly libelled and insisted on.
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The defender being convened as heir to her predecessor, or as successor to him in his lands, or as lawfully charged to enter heir, and by some other alternatives, as use is, and she for eliding of that member, where she was convened as lawfully charged to enter heir, offering to renounce; the other replying, That she could not be suffered to renounce, seeing res was not integra, because she had behaved herself as heir, by selling of the lands of wherein her her father died infeft, since his decease; and it being duplied, That this alienation, if it were true, yet could make her only liable as successor to her father, but did not hinder her but she might renounce to be heir, and thereby she might by her renunciation elide that member; for this deed, as said is, tended only to prove her successor, which alternative the pursuer could never be heard to prove against her, because she being convened by the same pursuer in another process super eadem re, as successor to her father, and the same being admitted to his probation, he failed to prove her successor, and she is assoilzied, so that he cannot be heard to qualify the same, and this alleged disposition is only a qualification thereof. The Lords found, that albeit the pursuer failed to prove this defender successor, yet that secluded him not but that he might reply upon this disposition made by her of lands, wherein her father died infeft, and seized, to whom she was apparent heir, and that the pursuer might be heard to propone and prove that reply, notwithstanding of his failing to prove her successor; for the Lords found this a several member, which was now offered to be proved, from that member, whereby she was convened as successor; seeing, to prove her successor, the pursuer behoved to produce where she was infeft, and this reply qualified her to behave herself as heir to him, whereby she could not renounce in prejudice of the charge given to her to enter heir; and the same was not alike, as if he had insisted thereby against her as successor; but the Lords found them distinct members.
Act. Hart.Alt. Trotter.Clerk, Hay.
Fol. Dic. v. 2. p. 207. Durie, p. 582.
