A general service as heir of line is not a sufficient title to pursue in a reduction of a right to lands on which infeftment has followed, where the pursuer, if successful, must take them up as heir of provision.
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In the year 1725, Neil Macindoer, proprietor of the lands of Kilchoan, resigned them into the hands of Patrick Campbell, the superior; whereupon he obtained a new charter, granting them to himself, “in vitali reditu duran. omnibus suæ vitæ diebus, et post ejus decessum, hæredibus masculis legitime procreandis inter cum et Annam Maccallum, ejus sponsam; quibus deficientibus hæredibus masculis legitime procreandis de ejus corpore, ullo subsequente matrimonio; quibus deficientibus Duncano Macindoer in Kilchoan, filio patrui dicti Nigelli Macindoer, et hæredibus masculis legitime procreatis, sive procreandis de corpore dicti Duncani Macindoer; quibus deficien. proximis legitimis hæredibus masculis dicti Nigelli Macindoer quibuscunque; quibus etiam deficien. ejus hæredibus et assignatis quibuscunque, hæreditarie et irredimabiliter.”
Neil Macindoer took infeftment in terms of the charter, and died, leaving Mary, an only child. The succession therefore opened to Duncan Macindoer.
Duncan had only one son, who did not long survive his father. On his death, John Macindoer took up the succession under the charter, as nearest lawful heirmale of Neil; and on the 16th February, 1753, Mr. Campbell, the superior, granted him a precept of clare constat in that character, upon which infeftment followed.
A few weeks previous to his obtaining this precept of clare, John Macindoer executed a disposition of the lands in favour of Mr. Campbell, containing a procuratory of resignation ad remanentiam, on which an instrument of resignation followed on the 19th February, 1753, which was duly recorded.
When the period of the long prescription from the date of this transaction had only a few weeks to run, Neil M'Callum, son of Mary, daughter of Neil Macindoer, served heir in general to his grandfather, and brought an action of reduction and improbation against Mr. Campbell, and the representatives of John Macindoer, in order to set aside their titles, 1st, Not only because John Macindoer was not the heir-male of Neil, but because there were no heirs-male in existence, so that the succession opened to him under the last destination of the charter 1725, to heirs whatsoever; 2dly, Because the precept of clare constat granted to John did not specify any chain of connection, from which could appear that he was the heir-male of Neil. In defence it was
Pleaded: 1st, The pursuer's general service as legitimus et propinquior hæres of Neil, does not give him a title to carry on the present action. Although the fact established by the service may be true, it does not follow, that the preceding destinations in the charter 1725 have failed, and that the pursuer has now right to the lands in question; nor has he in any shape connected himself with the lands.
2dly, The rights produced are sufficient to exclude the pursuer's title, upon the defender's instructing the fact, that John Macindoer his predecessor's author was Neil's nearest lawful heir-male, of which he now offers a proof. He will also instruct, that there are other heirs-male of Neil still in existence, which must completely bar any right on the part of the present pursuer; and this proof is thought to be competent, being precisely analagous to the proof of possession, which the Court uniformly allow when a prescriptive right is founded on as a title to exclude.
Answered: 1st, Unless the pursuer's present title is sustained, he must be for ever excluded from insisting in the present action. It is impossible for him to obtain a special service as heir of provision to his grandfather, because while the precept of clare and infeftment in favour of John Macindoer stand in the way, it can never be said that his grandfather died last vest and seised in the lands. Neither can the pursuer expede a general service, as heir of provision to his grandfather, because before obtaining it he must prove, that all the heirs-male called to the succession have failed. But how can this be done, till the precept of clare in favour of John Macindoer, asserting the existence of an heir-male, be reduced. Besides, it has been decided, that a general service is a sufficient title in the reduction of rights on which infeftment has followed; 6th November, 1746, Horns against Stevenson, No. 66. p. 16093. And even if the pursuer had not been served either in general or special, yet in the circumstances of the present case, where it is impossible he can establish any feudal or personal right to the lands till the defender's titles are set aside, his right of blood alone ought to be held sufficient to enable him to insist in the present action.
2dly, The defender in reality acknowleges, that his title, in its present situation, is not sufficient to exclude; for he admits, that in order to render it so, certain extrinsic evidence is necessary. The proof offered too is incompetent hoc statu, and the reasoning from the case of prescription inconclusive. If a deed ex facie defective were founded on as a prescriptive title, a proof of possession would not be granted, unless the action were allowed to proceed in its usual course; 4th July, 1781, Manson Sinclair against Sinclair, No. 151. p. 6725.
But further, a precept of clare constat is in no case effectual against third parties; Stair, B. 3. Tit. 5, § 26; Erskine, B. 3. Tit. 8. § 71; Bankton, B. 3. Tit. 5. Par. 91. And, at any rate, the one in question is fundamentally null, as it neither specifies the propinquity of the vassal to the supposed ancestor; Stair, B. 3. Tit. 5. § 35; Erskine, B. 3. Tit. 8. § 66; nor the character under which he assumes the succession. He should have been styled, not merely heir-male, but heir-male and of provision to Neil Macindoer; 18th November, 1788, Reid against Woods, No. 32. p. 14483.
The Lord Ordinary found, that the titles produced were not sufficient to exclude.
Upon advising a reclaiming petition, with answers, the Court were of opinion, that the pursuer's present title was insufficient; but at the same time, it was observed, that the defect might be remedied, notwithstanding the existence of the precept of clare constat, in any of the following ways: 1st, By a special service as heir of provision to his grandfather; 2dly, Perhaps even by a general service in that character; or, 3dly, By an adjudication on his own trust-bond, followed by a charge to the superior to enter him. It was also observed, that an infeftment flowing a non domino does not exclude a second.
The Lords “recalled the interlocutor reclaimed against, and found the pursuer had not yet produced a sufficient title, but allowed him to do so cum processu, and sisted process for that effect.”
By pronouncing this judgment, the Court had no occasion to decide respecting the sufficiency of the defender's title to exclude; but on this point they seemed to be of the same opinion with the Lord Ordinary.
Lord Ordinary, Swinton.Act. Solicitor Blair, Fletcher.Alt. M. Ross, Arch. Campbell.Clerk, Sinclair.
Fac. Coll. No. 31. p. 62.
