Duke of Hamilton and Earl of Selkirk v. Archibald Douglas of Douglas
Date: 28 November 1761 Case No. No. 26.
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The Duke of Douglas, in July, 1761, executed an entail, in which he granted procuratory for resigning his estate in favour of himself, and heirs of his body; whom failing, the heirs whatsoever of the body of the deceased Marquis of Douglas, his father; whom failing, Lord Douglas Hamilton, &c. The Duke dying in the same month, Mr. Douglas, his sister's son, took out a brieve from Chancery, to be served heir of provision in general upon the said deed. The service being retoured in common form, Mr. Douglas thereby acquired right to the procuratory in the entail 1761, and put up a signature in Exchequer for a charter of resignation, that he might complete a feudal title to the lands. He also entered into possession, by appointing factors, &c. Meantime, the Duke of Hamilton and Earl of Selkirk having raised actions of reduction and declarator, as heirs of tailzie and provision to parts of the estate, and having obtained brieves to be served heirs in special, it was questioned, whether their services could go on, as Mr. Douglas, though he had not completed his titles by infeftment, was in cursu of completing a proper feudal title to these lands. While this question was in dependence, the Duke of Hamilton and Earl of Selkirk petitioned the Court to sequestrate the lands in dispute, and to appoint a factor for uplifting the rents till the issue of the competition, upon this ground, That it was unjust, where a succession is in dispute, and where there is a competition of brieves, that the one party should have so great an advantage as to be allowed possession of the rents. Answered: Mr. Douglas, by his service as heir of provision on the deed 1761, is vested in the personal right to the lands, and has a good title of possession against the granter of that right, and against every person claiming as heir under him; and being in the lawful possession, he is entitled to continue it, till it be evicted in the regular course of law. The Lords refused the desire of the petition.
Fol. Dic. v. 4. p. 273. Fac. Coll.
*** This case is No. 12. p. 3966. voce Exhibition.
See another case between the same parties, Sect. 5. infra.
