Who to be understood heir of line? Who, of conquest
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Umquhile Peter Smeaton granted a disposition to Crawford his wife, and her heirs, of a tenement of land, whereupon nothing following during her lifetime. Her younger brother James Crawford served himself heir-general to her, and obtained a decreet of implement against John Smeaton as heir to his father, and having used horning thereon, obtained adjudication against Smeaton, and his superior, and thereupon was infeft; which right was disponed by him, with consent of William Crawford, elder brother to the wife. The said John Smeaton dispones the same tenement to Alexander Smeaton, and he is infeft, and thereupon pursues a reduction of James Crawford's retour, and of all that followed thereupon in consequence, on this reason, that the disposition to the wife belonged not to James Crawford her younger brother, who was heir of line, but to William Crawford, her elder brother, as heir of conquest, and so the service was null, following thereupon; and the pursuer being first infeft from Smeaton, he hath the only right, because any infeftment to William, the heir of conquest, will be posterior. It was answered, that it was jus tertii to the pursuer, whether the heir of line was served or infeft, or the heir of conquest; likeas the heir of conquest did concur, and had consented to the disposition.
The Lords found not the defences relevant, but considering the case as calumnious, seeing it was but of late cleared by decisions, whether the heirs of line had right to dispositions without infeftment, they did supersede to give answer, but ordained the defender to give in what evidences he could give of the onerous cause of his disposition.
