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Scottish Court of Session Decisions >>
Calderwood v Smith. [1626] Mor 13272 (14 December 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor3113272-041.html Cite as:
[1626] Mor 13272
Subject_1 QUOD AB INITIO VITIOSUM. Subject_2 SECT. IV.
Making up Titles ex post facto.
Calderwood v. Smith
Date: 14 December 1626 Case No. No 41.
A removing not sustained at the instance of an apparent heir, in respect not only his sasine but his retour was subsequent to the warning.
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In a removing at the instance of one Calderwood, who was seised in the lands libelled, as heir to his father served and retoured, against James Smith, the Lords found no process by virtue of that sasine, albeit the same proceeded upon a retour as heir to his father, because both the sasine, and also the retour, was after the warning; for, albeit the sasine had been after the warning, yet if the retour had been before the same, it would have been sufficient; but the retour being also after the warning, the Lords found the pursuit upon that warning could not be instructed to seek the tenant to be decerned to remove, and so to make him subject to violent profits since the warning; for the Lords found, That it could not be drawn back to the time of the pursuer's father's decease; as if that he being his heir at the very time of his decease, he was not made heir by the retour only from the date of the retour, but from the time of his father's decease he was heir, and the retour cognosced him to be heir to that man; so that the pursuer alleged, That he being cognosced heir by the retour, he had right to the lands from the time foresaid of his father's decease; which was repelled in this judgment of removing, where violent profits might be thereafter acclaimed; but if this sasine had been used to instruct a pursuit against the tenants for the duties of the land, which were in use to be paid to the defunct before his decease, I think eo casu the same would have been sustained ad hunc effectum, albeit not to seek removing thereupon. Graig, Lib. 2. Dieg. 9. dicit, quod hæreditas semper continuatur cum morte defuncti, et ad eam retrotrahitur.
