The proprietor's infeftment being reduced, subaltern infeftments granted to possessors will not defend them in a removing, altho' they they had not been called to the reduction. See No 31. p. 14049.
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Harthill being pursued to remove from certain lands of the barony of Wairds, which were disponed to his predecessors by the L. of Wairds for the time, at the instance of Clunie, who had acquired a right to the whole lands of Wairds, from the Earl of Mar; after that he had obtained a decreet, reducing the L. Waird's rights and securities of the said lands, and Harthill defending himself with his heritable infeftment of the said lands granted to him as heir to his father, who was also infeft therein by the L. of Wairds, as heir to his father the defender's good-sire, who was also infeft therein, as heir to his father, the defender's grandsire; and, by virtue of these three succeeding rights, they were in immemorial possession of the said lands, which he alleged, was sufficient to defend him in this possessory judgment, aye and while his rights were reduced;—and the pursuer answering, That his author's right being reduced, his behoved to fall, neither needed he to reduce these, which fell in consequentiam, they depending upon his author's right, which was found null and reduced; and the defender replying, That he was not called to that reduction of his author's right, and so could not be prejudged thereby;—the Lords found, that the progress of the defender's heritable right and possession, excepted upon by him, could not maintain him against this removing, in respect his author's right was reduced, which decreet of reduction extended also to reduce in consequentiam the whole writs depending thereon; and found that this defender was not a necessary party to be called to that reduction, neither needed the pursuer to intent any special action de novo to reduce the same; for these being rights only granted to be holden of the giver, and so base not holden of the superior, the reducer had no necessity to know the same, neither had he necessity to reduce these subaltern base rights; for if he should be put to reduce these subaltern rights, it should be endless labour; for such rights might pass from hand to hand, that it might prove impossible for any pursuer to find them all out; and therefore these base rights, not being acknowledged by the pursuer's self, nor becoming public, the pursuer needed not to know them, and so could not defend the excipient.
Act. Nicolson.Alt. Mowat.Clerk, Gibson.
Fol. Dic. v. 2. p. 350. Durie, p. 570.
