A nullity proponed by way of reply, was refused to be sustained against a standing decree, altho' the nullity was, that it proceeded upon an infeftment of kirk lands not confirmed, which can produce neither action nor exception.
Click here to view a pdf copy of this documet : PDF Copy
One Hind pursues removing, as heir to his goodsire, who was infeft in some husband-lands in Coldinghame, against L. Wedderburn and his tenants; and he defending and excepting, that his father had obtained decreet of removing against this pursuer's goodsire, to whom the pursuer is heir, by virtue of which decreet his father, during his lifetime, and since this defender, hath been in continual peaceable possession of the lands libelled these thirty-four years by past; therefore the pursuer, this decreet standing, cannot pursue removing. And the pursuer replying, That the decreet cannot be received to stay this removing, except that the defender would allege some right by virtue whereof he bruiks, and by virtue whereof the sentence was obtained; which, if he will allege, he will oppone a nullity in law, viz. that it is an infeftment of kirkland not confirmed, which can neither produce action nor exception. Likeas John Stuart, now Laird of Coldingham, and author of this pursuer's right, compeared and concurred with this pursuer, and adhered to this reply, and assisted the pursuit, against whom no decreet is obtained.——The Lords found, in respect of the said decreet, clothed with so long possession, obtained against this pursuer's goodsire, to whom he was heir, and pursued by him hoc titulo, was standing unreduced, therefore that the pursuit could not be sustained, notwithstanding of the said reply of nullity, which is not receivable by exception or reply; for it was not found necessary that the defender should except upon his right, so long as the said decreet, clothed with so long possession, stood unreduced: And the Lords respected not the superior's concourse, to sustain a pursuit of removing at another party's instance, he not being pursuer.
Act. ——.Alt. Nicolson.Clerk, Scot.
Fol. Dic. v. 1. p. 169. Durie, p. 652.
