The exception, “pro indiviso,” not sustained to hinder removing a relict from a house, as being a tenement indivisible, out of which she had a terce.
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Logan charges Galbraith to remove from a house; who suspends, and alleges, that she is served and kenned to a terce of the house, which terce she bruiks pro indiviso with the two thirds. The charger answered, The reason ought to be repelled, because, albeit the defence pro indiviso be relevant against such who can obtain division, it being their own fault that they do not first divide, or they pursue removing, but where it is a house, being unum tenementum indivisibile, the heir, or successor of the husband, who has two thirds, and continues in his possession as well as the relict in her third, ought to be preferred in the possession, quia majus trahit minus.
The Lords found the answers relevant to elide the reason, and decerned the relict to remove, with this quality, that if the fiar did not dwell in the house himself, the relict should be preferred, giving as much mail as any other tenant, and giving caution for the two parts.
