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In a process of removing, at the instance of an heritor against a wadsetter, as not being infeft, it was alleged for the defender, That the pursuer's right is acquired with the burden of the defender's wadset, which the Lords sustained.
Harcarse, (Removing.) No 843. p. 241.*** Sir P. Home reports this case:
1686. December.—Sir Peter Fraser, as being infeft in the barony of Cab perso, which was a part of the Earl of Marshall's estate, upon a disposition from the apprisers, having obtained a decreet of removing before the Sheriff of Kincardine, against Strachan of Glendie, for removing from the lands of Glendie, which are a part of the said barony; whereupon being charged, he suspended, upon this reason, That the decreet was null, and that the suspender could not be obliged to remove, because the pursuer's disposition from the apprisers did bear an express reservation of the suspender's right. Answered, That the suspender's right being only but a personal disposition, from the Earl of Marishall, whereupon no infeftment has followed, it could not defend against the removing, albeit that right was reserved in the charger's disposition, which reservation can only import that the charger should have recourse of warrandice against his author, but not validitate the suspender's right, so as to make it preferable to the charger's right, The Lords sustained the defence, viz. that the charger's right bears a reservation of the suspender's wadset, and finds the same proved by the right produced, and therefore suspended the letters simpliciter.
