In a declarator of property, which was in effect a fixing of marches, it was found sufficient to call a disponee, though not infeft; and not the disponer who held the feudal right.
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Patrick Nicol merchant, as heritor of the lands of Easter Grantoun, pursues a declarator of property against Sir Alexander Hope, heritor and possessor of the lands of Wester Grantoun, and to hear and see him decerned to desist from molesting the pursuer in his possession of the lands libelled; and namely, for demolishing that part of a dyke within these few years built within the bounds of the pursuer's lands.—It was alleged, That there could be no process, because all parties having interest were not called, viz. the heir of the Laird of Craighall, who stood last infeft in the lands of Wester Grantoun, the defender not being infeft.—It was answered, That the defender bruiked the lands as heritable possesor; likeas, by a heritable disposition, and procuratory of resignation, the same lands were resigned in favours of the defender; and his not expeding an infeftment, could not in law nor reason put the pursuer to cite his author, who is minor.
The Lords repelled the allegeance in respect of the answer.
Fol. Dic. v. 1. p. 135. Gilmour, No 58. p. 42.*** Stair reports the same case:
Patrick Nicol pursues a declarator of property of his lands of Grantoun, and that he had good right thereto, conform to the bounds libelled. It was alleged for Sir Alexander Hope, 1mo, All parties having interest are not called, this being an action, that in effect terminateth upon a perambulation, or determining of the marches. It is a real action, and there is necessity to call the heirs of Sir John Hope, who died last vest and seased in the other adjacent lands. The pursuer answered, That he offered him to prove, that Sir John had disponed in favour of Sir Alexander, and resigned in his time. It was answered for Sir Alexander, That Sir John was not denuded, seeing no infeftment followed, and the disposition is but an incomplete personal right, so that some having the real right must be called.
The Lords repelled the defence, in respect of the reply. It was further alleged for Sir Alexander, That he had built a park-dyke upon a part of the ground in question, before the pursuer's right, sciente et astante domino; the former heritor having never opposed, nor contradicted, which must necessarily infer his consent. The pursuer answered, That it was not relevant to take away any part of the property, upon such a presumptive consent, neither was he obliged to disassent, seeing he knew that which was built upon his ground, would become his own, as edificatum solo cedit.
The Lords repelled this defence also; but they thought that the taciturnity might operate this much, that Sir Alexander might remove the materials of his wall, or get from Patrick Nicol quantam partem est lucratus, by the building of the wall.
