Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
Lamont v. Lamont
Date: 18 January 1740 Case No. No 148.
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In a reduction and improbation of land rights, it is a good defence that the defender has a preferable title to the subject, exclusive of the pursuer's right, consequently that the pursuer has no interest to insist in the process; and the defender will be allowed a term to prove his defence in the ordinary way. But after a term is taken to produce and an act extracted, which is virtually an acknowledgement of the pursuer's title, an offer to exclude, or to show that the pursuer has no interest, by production of a preferable right, ought not regularly to be received, being competent and omitted; yet even in this case, an offer to exclude will be admitted of, provided it be instantly instructed. For this reason, after a term is taken to produce, the defender offering to exclude the pursuer by production of a habile title, and offering to prove a 40 years possession, the Lords will not admit of the proof in this state of the process, but will reserve it till discussing the reasons of reduction. See Appendix. See Farquharson against Fraser, No 147. p. 6720.
Fol. Dic. v. 1. p. 451.
*** The like principle of decision was recognized in the case, 29th January 1735, Ainslie against Watson. See Appendix.
