Exceptions, Whether Proponable in Cursu Diligentia.
Nisbets v. Smiths
1685.
November. Case No. No 89.
A disposition of lands being granted without procuratory or precept; in a process against the heirs of the granter, for fulfilling the obligation contained in the disposition, to grant procuratory and precept, the defence that the deed was granted on death bed, was found not competent in hoc statu, but reserved till reduction.
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Mr Alexander Herriot having granted a disposition of his lands of Brock-house, to Agnes Nisbet his wife, and she having pursued Isobel and Esther Smiths, as representing the said Mr Alexander their uncle, upon the passive titles, for fulfilling of the disposition; alleged for the defenders, That they could not be obliged to fulfil, because the disposition was granted by the said Mr Alexander upon death-bed, upon which they had raised a reduction, which they now repeated. Answered, That the pursuer being in course of diligence for completing of her right, it cannot be stopt upon any such reduction, whereof the reasons must abide probation; as in the case of an adjudication upon the late act of Parliament, which will not be stopt upon any defence consisting in facto, that abides probation, unless the same be instantly verified; but all other defences are reserved contra executionem, and the defenders have no prejudice; for, if they prevail in the reduction, then the pursuer's diligence falls in consequence. The Lords repelled the defence, and decerned the defender to fulfil the disposition. But declared the obedience to the sentence should not prejudge the defenders in case they prevail in their reduction.
Fol. Dic. v. 1. p. 177. Sir P. Home, v. 2. No 725.
