Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Keith v. Mr James Cathcart
Date: 24 January 1695 Case No. No 59.
Found in a process of reduction and improbation, that an adjudication with a charge against the superior, was not sufficient title in the pursuer, to cause the defender to produce real rights, quoad the reduction, but only in the improbation. The pursuer having, after that interlocutor, procured infeftment, the Lords received the title, though posterior to the summons.
Click here to view a pdf copy of this documet : PDF Copy
Mersington reported Alexander Keith contra Mr James Cathcart of Carbiston, in a reduction and improbation of the rights of a tenement. Alleged, Your title cannot force me to produce any real rights, because you are not infeft on your adjudication. Answered, He has a charge against the superior, which is equivalent. The Lords found this title sufficient to force production in the improbation, because any having interest may propone “false and feigned;” but that he could not insist in the reduction of real rights perfected by infeftment, unless he were also infeft, no more than he could pursue a removing.
1695. December 3—Mersington reported Alexander Keith writer in Edinburgh against Mr James Cathcart of Carbiston. The Lords, 24th January last, had found his title of an adjudication, with a charge against the superior, not sufficient to cause the defender produce his real right quoad the reduction, but only in the improbation. Since that time Mr Keith procures himself infeft, and now insists that he may take a term in the reduction also. Alleged, His title to pursue the reduction being formerly cast as null, and now made up, not only since the citation on the summons, but posterior to the Lords' interlocutor, the former instance perishes, and he must raise a new summons, especially in such an unfavourable pursuit, else it should be filius ante patrem. Answered, That he had a title, only the Lords found it defective and incomplete; and he having now perfected it, actiones non sunt multiplicandæ sine necessitate; and the Lords have oft permitted a part of a title to be produced cum processu. See 21st July 1676, Drumelzier, No 52. p. 13282.; and lately, John Jolly against the Viscount Kenmuir, and the Duke of Gordon against his Vassals, see Apbendix.; and in a pursuit for executry, the Lords have allowed to confirm before extract. The Lords received the title hoc ordine, though posterior to the summons, and found that there was no necessity of raising a new process See Title to Pursue.
Fol. Dic. v. 2. p. 305. Fountainhall. v. 1. p. 662. & 682.
