A retour found a sufficient title, where no other party had appeared, and alleged a right.
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In an action pursued by Maxwells, who were infeft in certain lands upon a retour as heirs to their father, against Robert M'Brair, for the mails and duties of the lands, both since the date of the retour and infeftments, and also of certain other years preceding the retour, since the decease of their father, to whom they were served and retoured as heirs; the Lords sustained the action upon the said sasine, proceeding upon a retour, for the years also since the decease of their said predecessor, and before the retour; albeit it was alleged for the defenders, That they could not pursue for these years, seeing there was no right standing in their person to the same of these years: Which allegeance was repelled, in respect the right proceeded upon a retour, which was sufficient to sustain the pursuit for these years, seeing there was no other party compeared to allege any right thereto in the person of any other; and for these years, albeit they might be in non-entry, yet being in feu lands, the superior could have no right but to the retoured duty, and not the full mails, before declarator.
Act. Belshes.Alt. Cunninghame.Clerk, Gibson.
Durie, p. 110.
