Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
Laird of Strowan v. Marquis of Atholl
Date: 13 July 1680 Case No. No 144.
Found, that the defender's father's infeftment being anterior to the pursuer's infeftment excluded certification, though the defender did not instruct he was heir to his father.
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Robertson of Strowan pursues the Marquis of Atholl for reduction and improbation of a right of the kirk-town of Strowan and others, and craves certification, unless the Marquis would take terms to produce; who alleged no process, because he produced his father's infeftment, anterior to the pursuer's infeftment, containing the lands in question per expressum, both in his own and his father's infeftment; whereas Strowan's charter hath a particular enumeration of the lands comprehended in his barony, without the least mention of the lands in question, nor are they mentioned in any of his predecessor's rights. The pursuer replied, That these lands are part and pertinent of the barony of Strowan, and an enumeration is not exclusive of other parts; and as to the defender's father's charter, it cannot exclude the pursuit, unless the defender were infeft, at least served heir to his father. 2do, The pursuer produces his father and goodsire's infeftments, anterior to the defenders. The defender duplied, That the common stile in all improbations and reductions, is a production of all rights made to the defender and his predecessors, to whom he may succeed jure sanguinis, and therefore the defender produceth sufficiently, viz. his father's charter, to whom he may succeed jure sanguinis, which is anterior to, and exclusive of the pursuer's infeftment. Neither is his reply relevant to force the defender to produce upon the production of his father or goodsire's infeftments, unless he were actually served heir to them; for his being apparent heir is no active title, though the defenders being apparent heir, is sufficient to exclude any farther production.
The Lords found the defender's father's infeftment being anterior to the pursuer's infeftment, did exclude certification, though the defender did not instruct himself heir to his father; but found the pursuer could not urge certification upon any of his predecsssor's infeftments, unless he were served heir to them; and that he ought instantly to verify the same, being his active title, at least before any production; and would not sustain it to be proved that he was heir, by reply; and therefore assoilzied the defender ab hac instantia, upon the priority of his father's right to the pursuer's title produced.
Fol. Dic. v. 1. p. 451. Stair, v. 2. p. 784.
*** See the sequel of this case, No 27. p. 5195, voce Grounds and Warrants.
