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William Yoeman having apprised the lands of James Oliphant, son to Sir James Oliphant, and Mr. Patrick Oliphant having also apprised the same, William insists on this reason, that Mr. Patrick's apprising was satisfied by intromission within the legal. Mr. Patrick alleged that his whole intromission could not be countable to satisfy his apprising, because the two parts thereof did only belong to his debtor, and the third part to Dame Geils Moncrieff, who had right to a terce thereof, and to whom Mr. Patrick was only liable and accountable, and for a part of the years he was her tenant, and had right from her. It was answered, That the tercer had no complete right, till she was served, and kenned to her terce, which, being done after the years in question, the fiar might have possessed the whole till her service, and might have forced the possessors to pay him; so the appriser entering in possession of the whole, upon his apprising, cannot pretend the right of the tercer, and his taking tack of her was unwarrantable till she was served, and done of purpose, that his apprising might not be fully satisfied, and so the legal might expire, which is most rigorous and unjust; and offered presently to satisfy the tercer of her third. It was answered that the service whensoever done, is drawn back to the husband's death, and doth but declare, and not constitute the wife's right, like the service of an heir.
The Lords found that Mr. Patrick could not clothe himself with the tercer's right, to cause the legal expire, but found the offer relevant; for, besides the favour of the cause, the case is not alike with an apparent heir, whose right, though not declared, yet he continues in his predecessor's possession, and none other hath any interest; but the fiar might possess the whole, and exclude the tercer till she were served.
