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Thomas Hind pursues the Laird of Wedderburn for a husband land in Eymouth. It is excepted by Wedderburn, that no removing could be granted, because he is heir to his father, who obtained decreet of removing against the pursuer's goodsire, to whom he is heir, and by virtue thereof he has been in peaceable possession by the space of 40 or 50 years. It was replied, That the exception founded upon the decreet of removing is not relevant, except he say that he or his father were infeft in the said lands. The Lords sustained the exception, in respect the defender standing so long clad with possession, untill the same be produced.
Auchinleck, MS. p. 201.*** Spotiswood reports this case.
In a removing pursued by N. Hood against the Laird of Wedderburn, alleged, The defender's father, to whom he is heir or apparent heir, obtained decreet of removing against the pursuer's grandfather, to whom he is heir; by virtue of which decreet, he and his father had been in possession of the lands libelled for thirty or forty years. Replied, Nothing can maintain him but a real right, such as a tack, sasine, &c. As for the decreet, not sufficient, especially seeing the ground whereupon it proceeded, viz. the defender's sasine, was null, being kirk-lands, not confirmed. Duplied, His decreet was enough to maintain him in possession, being cloathed with so many years possession, till such time as it were reduced, and needed not allege any thing upon his infeftment. The Lords sustained the exception.
