A general service to the heir last infeft is not a sufficient title to pursue a reduction capite lecti; but the Lords found that the right of apparency entitled the pursuer to carry on his action, tho' it was objected, that he was not natural heir, or of line, but heir of provision, viz. a substitute in an entail.
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Grahame of Hourston executed an entail of his estate on his five sons seriatim, and the heirs-male of their bodies respectively, but did not record the entail.—Charles, the eldest son, succeeded his father, and was infeft upon the precept in the disposition of entail.—Upon his death, Henry, his only son, entered into possession of the estate, without making up any titles, and contracted a considerable debt to his sister Margaret, and her husband, Robert Grahame.
Subsequent to this contraction, the entail was recorded; after which, Henry granted a lease of part of the entailed lands to his sister Margaret and her husband for 171 years. Henry possessed the estate for 30 years, as heir apparent, and died without issue; upon which the succession opened to his uncle Alexander Grahame, youngest son of the entailer.
Alexander made up a title, by a general service, as heir of tailzie to his brother Charles, the heir last infeft; and, on this title, brought a reduction of the above-mentioned tack by Henry Grahame to his sister, and a removing from the lands, on various grounds; among others, that the lease was granted on death-bed.
Objected by the defender to the pursuer's title; The property of the lands leased to the defender is still in hæreditate jacente of Charles Grahame, the heir last infeft, and cannot be taken up by the pursuer without a special service to Charles.—The pursuer's general service establishes his propinquity, but does not vest in him the right of property in the lands. He has therefore no other title to carry on this action but his right of apparency.
A lease of lands, clothed with possession, is a real right in the lands for the time; and, therefore, according to the general principle, cannot be challenged by the heir while the lands are in hæreditate jacente.
An exception is admitted in the case of a reduction on the head of death-bed, brought by an apparent heir of line; but it has been found, that this privilege, given to the natural heir, does not extend to the heir of provision; Edmonstone contra Edmonstone, March 16. 1637, voce Title to Pursue.
But further;—The pursuer is not the apparent heir of Henry Grahame, the granter of the deed, nor can make up any titles to him as his predecessor in the lands.—It is only by serving heir in special to Charles Grahame, the heir last infeft, that he can vest himself in the property of this estate. He is, therefore, in the proper and legal sense of the words, the apparent heir of Charles Grahame, and has no connection with Henry Grahame, while the lands are in hæreditate jacente.
The pursuer avoids making up his titles to Charles, that he may not be subjected to the debts and deeds of the interjected heir, Henry Grahame, upon the statute 1695.—His conduct, therefore, is in fraudem of the statute; and the pursuer ought not to have the benefit of challenging the deeds of Henry Grahame, while, by lying out unentered, he does not become liable for his debts and deeds, as the statute justly requires.
Answered for the pursuer; That, by his general service, he is ascertained to be the heir entitled to take up the succession to this subject; but, without that service, he has sufficient title, as heir apparent, to carry on the present action.—The law has given the privilege of reduction ex capite lecti to heirs, of provision and tailzie, as well as to the heirs of line.—Consequently there is no room for any solid distinction betwixt the heirs apparent of the one kind and of the other. Both are accordingly now considered as equally entitled to challenge deeds on death-bed granted to their prejudice, though anciently the law might be different in this respect; vide Erskine, b. 3. t. 8. § 100.
The pursuer is heir apparent to the granter of the deed.—Before the act 1695, there was reason for considering the interjected apparent heir as a stranger. His successor serving to a remoter predecessor was not liable in implement of his debts or deeds. But now he is made, by such service, to represent the interjected heir, who has been three years in possession, as much as any predecessor to whom he serves;—consequently, before he makes up his titles, he is truly and substantially apparent heir to the interjected heir. This is the meaning which the statute itself puts upon the term Apparent Heir. The statute says, that when he is served, “he shall be liable for the debts and deeds of the person interjected, to whom he was apparent heir.”
The Court found, ‘that the pursuer's general service is no sufficient title to pursue this action. But found, that the pursuer's right of apparency, as heir to Charles Grahame, is a sufficient title to carry on the process of reduction on the head of death-bed.’ See Heir Apparent.
Lord Ordinary, Gardenstone.Act. Stewart.Alt. Swiston.Clerk, Menzies.
Fol. Dic. v. 3. p. 170. Fac. Col. No 65. p. 122.
