Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.
Robert Fergusson Writer in Edinburgh, v. Thomas Irving of Gribton
Date: 3 January 1712 Case No. No 24.
A person served heir, and infeft in general terms, was not presumed to be heir of line, but heir male, conform to his predecessor's charter produced, without the sasine.
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William Lord Herries having disponed the lands of Gribton to Sir William Maxwell his son, and to his heirs-male, as appeared by a charter of confirmation granted by the Sovereign to Sir William in the year 1609; which Thomas Irvine apprized the lands from John Maxwell, who was served legitimus et propinquior hæres to Sir William his father, and infeft, and upon this apprising Thomas Irvine got possession. Robert Fergusson, adjudger of the same lands from James Charters, as charged to enter heir to John Maxwell, his mother's father, pursued mails and duties. Thomas Irvine compeared and objected against the pursuer's title, That his adjudication is null, being led against the heir of line; whereas it appeared from the charter 1609, and a precept of sasine thereon in the same year, that the lands were tailzied to heirs-male.
Alleged for the pursuer; John Maxwell being served heir, and infeft in general terms, is presumed heir of line, as the most natural title of succession; unless it could be proved, that Sir William was infeft upon the precept and charter in favour of heirs-male. Consequently John's service and infeftment was a sufficient warrant for the pursuer to adjudge from his heir of line; seeing an adjudger, (who cannot know the private conveyances of his debtor's estate,) is not bound to look farther back than the last investiture; It is true, John's service as heir to his father, doth evince that the father was infeft, but not that his, infeftment was conceived in favour of heirs-male. Nor is it necessary to be concluded, that sasine followed on the foresaid charter; for Sir William might afterwards, changing his mind, have provided his estate to heirs whatsoever, and been infeft accordingly; which probably he did, because, had a sasine, upon, that charter been produced to the inquest who served his son, they would certainly have served him heir-male.
Answered for the defender; That Sir William was infeft, cannot be controverted by the pursuer, whose title depends also upon his sasine; and the serving John Maxwell, (who was both heir-male and heir of line,) lawful, and nearest heir indefinitely, must be understood applicando to the pursuer's sasine, otherwise the inquest should be guity of perjury, qui jurati dicunt, &c. Now, it is presumed, that the father's infeftment proceeded upon the charter to heirs male, until the contrary be instructed; and though the sasine, upon such a charter, had been laid before the inquest, they might have served John Maxwell lawful nearest heir to his father, since that might be applied to the father's charter.
The Lords sustained the defender's objection against the pursuer's title, and found the charter sufficient without the sasine to instruct and prove it; no right to heirs whatsoever being in campo.
