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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ogilvie of Milntoun v Mossman and Fordyce. [1681] 2 Brn 268 (1 February 1681)
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Cite as: [1681] 2 Brn 268
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[1681] 2 Brn 268
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.
Date: Ogilvie of Milntoun
v.
Mossman and Fordyce
1 February 1681 Click here to view a pdf copy of this documet : PDF Copy
Ogilvie of Milntoun being infeft, as heir to his goodsire, in the lands of Craigduff, did pursue reduction and improbation of a wadset thereof, granted to Mossman, upon this reason:—That it was granted a non habente potestatem, his father never having been infeft; in which process he had obtained certification against any pretended infeftment of his father's; which being extracted, he now insists upon this reason of reduction, that the wadset was granted a non habente potestatem. The defenders do now produce the father's seasine of Craigduff, and thereupon alleged Absolvitor from the reason. The pursuer opponed the certification extracted before this session, whereby his father's seasine was taken away: and certifications being the greatest security to terminate pleas, and fix rights, it cannot be called in question so long after the extract, albeit a reduction thereof were raised; much less summarily.
The defender answered, That albeit certifications in improbations are seldom recalled after the full end of the process in which they are granted, as if it be a simple improbation, without other reasons of reduction, where the certification terminates and ends the process; yet where the certification is but an interlocutor, and no definite sentence, and the process yet depending, that certification, upon strong and pregnant grounds, instantly verified, may be summarily recalled; and there can be no more pregnant specialty than in this case, where this pursuer, being apparent heir to his father, and master of all his writs, to shun his father's debts, suppresses his father's infeftment, who bruiked, as heritor, the lands in question, and enters heir to his goodsire.
The Lords reponed the defender against the certification, if he could adminiculate the seasine produced.
Vol. II, Page 848.
The electronic version of the text was provided by the Scottish Council of Law Reporting