An adjudication being challenged as following upon a charge to enter heir, the person charged not being the nearest heir, this was found competent to the nearer apparent heir without reduction, tho' infeftment had past upon the adjudication.
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John Ker having granted a bond, whereupon he being charged to enter heir to several persons his predecessors, and having renounced, their lands were adjudged; John took assignation to the adjudication himself, and pursued the defenders for exhibition of the rights and evidents of the lands, and delivery thereof. The defender alleged absolvitor, 1mo, Because the pursuit being upon the pursuer's own bond, now again assigned to himself, confusione tollitur obligatio.
The Lords repelled this defence.
2do, Absolvitor, because the pursuer can have no interest upon these rights proceeding against him, as apparent heir to these predecessors, and now assigned to him, because there were other apparent heirs, specially condescended on, nearer of blood. The pursuer answered, Non relevat, to take away his infeftment, which behoved to be reduced. 2dly, Non competit to the defenders, unless these nearer apparent heirs were compearing for their interest. The defender replied, That the infeftments having obtained no possession, and having proceeded only upon a charge to enter heir against the pursuer by collusion; it was competent by exception, seeing there was no service, nor possession, nor any thing done that the nearest heirs were obliged to know; and it was also competent to the defenders not to deliver the writs to any having no right thereto, they being liable to deliver them to the nearest heir of the true owner.
The Lords repelled this defence against the exhibition, reserving it to the delivery, in which they found it competent to the nearer appearing heirs, without reduction.
