Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Dundas v. Wallace and Biggar
Date: 10 November 1683 Case No. No 57.
A charge against a superior, given by an adjudger; after intenting a process of reduction, not allowed to draw back to support the process.
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Lord Carse probationer reported Mr William Dundas Advocate his reduction and improbation against Hew Wallace and William Biggar, anent the estate of Wolmet. The Lords found the pursuer being only a naked adjudger could not call for production, in order to reduction, (for if he restricted himself to improbation, he might,) of any real right, or infeftments, but only of personal rights, whereupon no infeftment had followed, and that the charge Mr William had given to the Earl of Lauderdale, superior of Wolmet, as a part of Musselburgh, to enter him, was not sufficient to give him interest to call for real rights, because the charge was done since the raising of his summons. Though a retour posterior to a summons will be drawn back, because it is only declaratory of the heir's prior right, yet an adjudger from an apparent heir being a singular successor, ought not to have that personal privilege, and therefore they found he could not urge that charge, unless he raised a summons posterior thereto. Some are of opinion, that even a charge against the superior (without also denouncing him, or an actual infeftment,) is not a sufficient ground in a reduction to force the producion of real rights. See Title to Pursue.
Fol. Dic. v. 2. p 305. Fountainhall, v. 1. p. 241.*** Harcarse reports this case:
1683. November.—In a reduction at the instance of a simulate creditor of an apparent heir, who had adjudged from him as lawfully charged,
Alleged for the defender, No process on the adjudication, which is but a judicial assignation, in respect the pursuer is neither infeft thereon, nor hath charged the superior.
Answered, There is a charge produced.
Replied, The superior was not charged till after the process was called, so that the pursuer having no sufficient active title in his person the time of the summons, the posterior charge cannot accresce to make a title to him a singular successor, though it would be effectual to an universal successor in removings, which are possessory judgments.
The Lords sustained the adjudication as a title quoad personal rights called for, viz. backbonds, discharges, renunciations, &c. without respect to the charge, whether prior or posterior to the summons, seeing the right of these passes by simple assignation, to which the adjudication answers; but found that the charge or infeftment, after the executing of the summons and day of compearance, was informal quoad charters, sasines, and real rights of lands, and would not sustain process as to that conclusion, the cause being unfavourable upon the pursuer's part. See Title to Pursue.
Harcarse, (Improbation and Reduction.) No 540. p. 150.*** Sir P. Home also reports this case:
1683. December.—Mr William Dundass having adjudged the lands and estate of Wolmet from Patrick Edmonston, as charged to enter heir to James and Mr Archibald Edmonstons, his brethren, pursues a reduction and improbation against William Wallace, of the rights of the said lands, granted by the said James and Mr Archibald Edmonstons. Dundas alleged for the defender, That the pursuers title being only an adjudication, whereupon no infeftment had followed, it could not be sustained as a title to call for production of real rights, and albeit there was a charge against the superior which would be sufficient in the case of competition of creditors, to prefer the adjudger to any posterior infeftment granted by the superior to another creditor, yet that cannot be sustained as a title in a reduction and improbation, unless the pursuer were actually infeft, as also the charge against the superior was given since the intenting of the process. Answered, That a charge against the superior is sufficient not only in the competition of creditors, but also to be a title in reduction and improbation, being reputed in law equivalent to an infeftment; and albeit the charge was given after the intenting of the pursuers process, yet it doth accresce, as in the case of a reduction pursued at the instance of an apparent heir, who is served and retoured, which will be sustained, if he be infeft before he insist in the action, and in the case of a pursuit at the instance of an executor decerned, which will be sustained, the confirmed testament being produced before extract, albeit the confirmed testament be absolutely necessary to make up the title. The Lords sustained the improbation, as also sustained the reduction, towards the production of all personal rights, such as backbonds and others, but refused to sustain process of any real rights.
