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Scottish Court of Session Decisions >>
Tweedie v Bell. [1581] Mor 16079 (12 January 1581)
URL: http://www.bailii.org/scot/cases/ScotCS/1581/Mor3716079-002.html Cite as:
[1581] Mor 16079
An heir apparent cannot pursue reduction of an infeftment of property until he be served heir in general.
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There was one John Tweedie, that was apparent heir, with the assistance of the tutor of pursued Adam Bell for the reduction of a deed of redemption of the lands of C. and per consequentiam, of certain infeftments that passed after the deed, and upon the deed. It was objected by Adam Bell, That the said John Tweedie could have no interest to pursue as apparent heir, except he would allege him to be served nearest and lawful heir, for so he might ay thereafter renounce to be heir et sic reddetur judicium elusorium. To this was answered, That the deed was obtained against him in prima instantia, as apparent heir et sic quod quisque juris in alium, &c. To this was answered, That albeit the deed was obtained against him, and that he might pursue for reduction of the same as apparent heir, which was granted, he could not pursue for reduction of the instrument and heritable title, except he were institutus, cognitus et deservitus hæres juxta leges; for, as was reasoned among the Lords, that albeit an apparent heir may pursue in such things as are necessary and requisite for the obtaining of his retour and service, yet non potest auferre jus acquisitum alteri, aut alterius hæreditatem, nisi fuerit institutus et deservitus hæres. The Lords, after long reasoning via voce, found by interlocutor, That the pursuer had no interest to pursue the reduction of the infeftment as apparent heir, but behoved to allege him to be served nearest and lawful heir.
