A terce was found no sufficient title to defend against removing upon apprising against the husband's heir.
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John Barclay being infeft in the Barony of Cullernie, upon an apprising, pursues the tenants to remove. Compearance is made for Dame Marion Scot, who alleged that she had right to a terce of this Barony, as having been relict of the deceased Laird of Cullernie, and so having right with the pursuer pro indiviso, she will not suffer the tenants to remove. It was answered, That she produces no interest, unless her terce were kenned.
The Lords repelled the allegeance, and decerned, reserving her right of terce as accords, and found that she could not make use thereof till it were kenned.
Stair, v. 2. p. 315.*** Dirleton reports this case:
A removing being pursued from some lands of the estate of Cullernie, the Lady Cullernie compeared, and alleged, that the tenant could not be removed without her consent, seeing she had right to a terce by the law, and was not excluded by her contract of marriage, though she was provided thereby to a jointure, but not in satisfaction of her terce, or what else she could pretend. Whereunto it was answered, That she was not served nor kenned to a terce, and until then, she had no interest to compear to stop the removing.
The Lords repelled the defence, and found she had no interest; reserving her right of terce, when she should be served and kenned, as accords.
