Action was sustained, where the disponer infeft, and the disponer uninfeft were joint pursuers, although during the process, the disponer disclaimed.
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Sir Alexander Home having disponed some lands of Coldinghame he stood infeft in, to Sir Patrick his brother, who did not infeft himself, a reduction and improbation was raised in both their names, against his vassals of Coldinghame, and terms taken; and Sir Alexander having afterwards, upon some incident differences with his brother, disclaimed the process, Sir Patrick craved certification in his own name.
Alleged for the defenders, That Sir Patrick was not infeft, and so could no insist in an improbation of these rights; nor could he crave certification in Sir Alexander's name, who had disclaimed the pursuit, and besides, was at the horn, and had not personam standi.
Answered for the pursuer; By the act of regulations all defences against the titles ought to be proponed before the taking of terms. 2do, Sir Alexander could not disclaim the process, which was raised in Sir Patrick's name; nor could his rebellion, which is personal, prejudge Sir Patrick.
Replied; It was needless for the defenders to have quarrelled Sir Patrick's want of infeftment, while Sir Alexander was a joint pursuer; but the objection was competent whenever the two interests were divided.
The Lords repelled the allegeance and reply made for the defenders, in respect of the pursuer's answer; and found, That Sir Patrick's want of infeftment could not be quarrelled in this state of the process, the objection being in effect a dilator, which should have been proponed ab initio.
Harcarse, (Improbation and Reduction.) No 551. p. 153.*** Sir P. Home reports the same case :
1684. November. Sir Patrick Home, Advocate, as having right to the lordship and barony of Coldinghame from Sir Alexander Home his brother, pursues a reduction and improbation against the vassals of Coldinghame, in Sir Alexander's name and his own, in which the terms being run, and certification being granted qua non producta, superseding extract until a certain time; and Sir Patrick having craved an extract of the certification; it was alleged for the vassals, That Sir Alexander's infeftment, which was the title of his action, was null, in respect he was not habile modo infeft, seeing the infeftment proceeded only upon horning, raised upon a decreet against the apparent heir of Francis Stewart, to whom the disposition of the estate, which is the foundation of Sir Patrick's right, was granted; whereas adjudication should have first been obtained upon the decreet, adjudging the estate from the apparent heir, for not fulfilling of the disposition; and the action being invented in Sir Alexander's name, as being only infeft, he had granted a declaration, by which he declares he has no interest in the estate of Coldinghame, and therefore disowns the action; as also Sir Alexander is debarred with horning, so that there can be no certification extracted, as was lately decided in the like case, of a reduction and improbation at the instance of the Earl of Home, No 59. p. 6651, where the Earl being debarred with horning, the Lords would not allow the action to be carried on in Mr Charles's , his brother's name, who had adjudged the estate from the Earl, in respect Mr Charles was not infeft upon adjudication. Answered, That it was not now competent to be objected against the pursuer's title after the act is extracted, and not only a term assigned, but all the terms run, and certification granted; it being expressly provided by the 25th act of the act of regulation, that all exceptions competent against production be discussed before the assigning terms; but to know how groundless the allegeance is, the progress of Sir Patrick's right is as follows, viz. John Stewart being infeft in the estate, upon the act of Parliament of erection, in the year 1621, he grants a disposition thereof to Francis Stewart, his elder brother, who being deceased, Mr Harry Home, Commissary of Lauder, as creditor to Robert Stewart, the said Francis's son, having charged him to enter heir to Francis Stewart, his father, thereupon leads an apprising against him of the foresaid disposition of the estate of Coldinghame; and so coming in place of Francis Stewart, by virtue of the apprizing, obtains a decreet of transferring of the disposition against the deceased Captain Francis Stewart, over to the said John Stewart, granter of the disposition, as lawfully charged to enter heir to him, and upon the rest of the passive titles; by which the said Mr Harry Home obtained the disposition transferred in his person active, and against the said Captain Stewart passive, by which Captain Stewart is decerned to infeft the said Mr Harry Home in the foresaid estate, conform to John Stewart's obligation in the disposition to Francis, his brother, and thereafter Mr Harry Home, raises a special charge to enter heir against Captain Stewart; as also, raised letters of horning upon the decreet of transferring, and charges Captain Stewart to infeft him in the lands, and to fulfil the other obligements in the disposition, upon which he is denounced and registrated at the horn; and the foresaid apprising and all the diligences done, thereupon being assigned by Mr Harry Home to Sir Alexander Home, there is a petition given in by Sir Alexander to the English Commissioners, making mention that he had right to the apprising of the foresaid disposition, and diligences following thereupon, and that he had done the utmost diligences against Captain Francis Stewart, by horning, and denounced and registrated him at the horn, for not infefting him and fulfilling the other obligements in the disposition, and upon the special charge to enter heir; and therefore craved that the Commissioners might grant warrant to the Director of the Chancery to issue furth a precept for infefting the said Sir Alexander Home in the estate, which was granted; and Sir Alexander having obtained a charter out of the Chancery, he was accordingly infeft, which was a proper and legal way for completing of the foresaid disposition, and the ordinary method used in the English time for completing such rights; and albeit were there any informality in it, as there is not, the same cannot be questioneds, seeing all judicial proceeding, the time of the late usurpers, or rights of lands made by the Lords, in authority for the time are ratified and approven, and cannot now be called in question, there being no review raised thereof within the time allowed by the act of Parliament; and any declaration granted, by Sir Alexander, declaring he has no right to the estate of Coldinghame, and disowning action, cannot prejudge Sir Patrick, seeing the declaration imports no more than the disposition that Sir Alexander has granted, which is only that he is denuded of the estate; and that he cannot disown the action, in so far as it is intented in his name, seeing a singular successor may either insist in his own name, or his author's name, or in both, as he thinks fit; and the horning against Sir Alexander cannot sist process in this case, because albeit Sir Alexander be only infeft, and that Sir Patrick's right from him is not yet complete by infeftment, yet the action being raised not only in Sir Alexander's name, but likewise in Sir Patrick's , from the beginning, and the terms being run, and certification granted, only the extract of the certification was superseded for some time, yet process cannot now be sisted by horning against Sir Alexander and the practick betwixt the Earl of Home and his Vassals doth not meet this case, because in that case the process was not intented from the beginning, in Mr Charles, his brother's name, nor were there terms taken, nor certification granted; but when the Earl was insisting in the action, the vassals having debarred him with horning, and Mr Charles having compeared for his interest, and craved that process might be carried on in his name, by virtue of an adjudication that he had led against the Earl, the Lords refused to allow the process to be carried on at his instance, not only because he was not infeft upon the adjudication, but in respect the process was not raised in his name from the beginning. The Lords repelled the defence proponed against the pursuer's interest, in respect the process was sustained ab initio at his instance, and that all the terms were run; and found the other defence proponed against the validity of the pursuer's title, and that Sir Alexander, his author was not validly infeft, nor competent hoc loco, reserving the same to be prompetent, after the production shall be satisfied, and the reasons come to be debated.
