Declarator of property may be pursued against the feuars of the lands, without calling the superior.
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There being mutual actions of molestation intented betwixt the said parties, before the Sheriff of Perth, which were, by consent of parties, advocated to the Lords; and the L. Wemyss being permitted to mend his precept, and to turn it to a declarator for finding the property of the lands, and others libelled, to pertain to him, as his own property; which action being pursued at his instance and his son's, who was fiar, and himself liferenter, the Lords found process, and sustained the action at the father's instance, who was liferenter, albeit the fiar was debarred by the defender by horning; seeing the father liferenter might seek this declarator upon the property, that the fee given to his son might be profitable and effectual to him; and this action was not sustained as merely petitory, but as mixed with the possessory, for maintaining of the pursuer's possession, as he libelled within his property, albeit the defender alleged, and claimed contrary property and possession; and also this action was sustained, albeit the defender alleged his property could not be disputed, except that his superior, of whom the defender held the lands wherein he was infeft, and whose vassal he was, were expressly called to this pursuit; who not being called, his right could not be questioned, nor he prejudged of his right, by calling of his vassal only, and not calling of himself, who was only the just party who should, and might maintain his own right; which was repelled, and this process and action against the vassal, who was heritor, was sustained. See Process.—Liferenter.
Act. Stuart.Alt. M'Gill.Clerk, Hay.
Fol. Dic. v. 1. p. 135. Durie, p. 697.
