How the Passive Title of Lucrative Succession is purged. What sort of Creditors have the Benefit of this Passive Title.
Mr Alexander Kinneir v. L Eastnisbet.
Date: 15 January 1633 Case No. No 133.
It was sustained as a defence in a pursuit upon this passive title, that the disposition in the defender's favour stood reduced, though the reduction was in absence.
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In an action for registration of a bond granted to Mr. Alexander Kinneir, by the defender's father, the defender being convened as lawfully charged to enter heir, for eliding whereof he renounced; and being convened as successor to his father post contractum debitum, for verifying whereof two infetments being produced, viz. the father's right, and the infeftment given to the defender by his father's disposition; and the defender excepting, that this disposition could not make him liable as successor to pay the debt of his father, because that right made to him is reduced; and the pursuer replying, That that reduction is for non-production only, the defender being absent, whereby he may reduce when he pleases that decreet reductive, and therefore he ought either to pay the debt libelled, or else to renounce all right, which he can pretend to the lands by virtue of that right, that the pursuer may otherwise thereupon either seek adjudication or comprising of these lands contained in his rights alleged reduced; the Lords found that the defender's infeftment produced, being standing reduced, (albeit for non-production) could not prove him successor; neither found they it necessary to compel the defender to renounce all right as the pursuer desired, for the right standing reduced made to the defender, then the rest subsisted in the person of the granter thereof who was the direct debtor, whereby the creditor might comprise the same from him, and whenever the defender should obtain the decreet reductive taken away, then the pursuer had this action safe against the defender, as successor unprejudged, which then he might prosecute as he pleased; and, in the mean time, he might serve inhibition against the defender, that he might do no deed to the pursuer's prejudice.
Act. Craig.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 2. p. 38. Durie, p. 665.
