Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
The Lord Balmerino v. The Earl of Strathmore
Date: 9 January 1706 Case No. No 63.
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The deceased Lord Balmerino as apparent heir to the Lord Couper, having commenced a pursuit against the Earl of Strathmore, upon a clause of warrandice in a contract of alienation in the year 1638, betwixt the Earl Kinghorn the defender's predecessor, and the Lord Couper; the Lords found that the present Lord Balmerino being served heir to the raiser of the process who died in the simple state of apparency, and also to the Lord Cowper, might insist in the said process without necessity to raise a new one.
Fol. Dic. v. 2. p. 303. Forbes, p. 66.*** Fountainhall reports the same case:
The Earl of Strathmore's grandfather, in anno 1638, dispones to the Lord Cowper the lands of Ingliston and Castleton, with the teinds, and gives warrandice against all farther impositions, augmentation of ministers' stipends, or other burdens whatsomevever, that should happen to be imposed on these teinds. In 1649, the commission grants an augmentation to the minister of L. 143 more than what these teinds formerly paid; whereupon the Lord Balmerino, as come in Couper's right, did raise a process in 1698 against Lord Strathmore, as representing his grandfather, to refund all the bygones, and to relieve him of the said augmentation and eviction in all time coming. Alleged for Strathmore, there was no valid active title in his person, neither did he connect his right to the contract of alienation whereon the distress and eviction is pretended; seeing all he produced was a charter of recognition from King Charles II. in 1669, and a sasine thereon, as having recognosced by the Lord Couper's taking a base infeftment on Strathmore's contract of alienation to him, the lands holding ward; which is so far from giving Balmerino right to the said contract of alienation, that it rather voids and annuls the same; 2do, As to the bygones preceding Couper's death, there is no right produced for conveying of them, but only an attested double of a testament and disposition made by the Lord Couper, in favour of Dame Mary Ogilvie his Lady; and she being afterwards married to the Lord Lindores, he, for any right he had jure mariti, and his son as apparent heir to his mother, assign and dispone the bygones to Lord Balmerino; whereas an attested double is no more but a copy, unless either the principal or an extract, or at least a judicial transumpt, were produced. And the Lord Lindores and the Master his son have no right, unless they had been established by a sentence in the Lady Couper's lifetime during her marriage with Lindores; which not being done, they remained still in bonis of the Lord Couper, and without a confirmation to him no right to these bygones could be transmitted. Answered for the Lord Balmerino; That, besides all his former titles, he has now served heir to the Lord Couper his uncle, which gave him right to all the evictions since his death in 1668; and as for what preceded, Sir James Elphingston had confirmed executor-creditor to the Lord Couper, which would carry all preceding his decease. Replied, This is an evident acknowledgment that his title was defective, and so forced to supply it by a service, which cannot now be received, being several years posterior to the raising and executing the summons, which was preposterous, and filius ante patrem, to make up a title after the summons is called and insisted in; and therefore he must, on this new title and service, intent a new process in regular form. Duplied, That where there is an antecedent natural title, the Lords have ever allowed the legal perfecting of it to be done cum processu; as an apparent heir, having the jus sanguinis, may serve at any time before extract; and was sustained to the Lord Pitmedden against the Countess of Dumfermline, within these few years. If it were a single title, by assignation or the like, there in deed it must precede the summons, and cannot be retrotracted; but it is otherwise in services of heirs; and Sir James Elphingston's right as executor-creditor can never support Balmerino's title to the bygones preceding Couper's death; but that the attested double could give no title for preceding years without the principal were produced; and that Balmerino could not found on Sir James Elphinston's right; and seeing the retour was but lately produced, therefore they found my Lord Strathmore not bound presently to answer thereto, until he were allowed some days to see it in the clerk's hands, bat that it ought to be received incidenter in this same process, without obliging Balmerino to raise a new one.
