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Scottish Court of Session Decisions >>
George Fisher v Thomas Brown. [1630] Mor 2204 (9 July 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor0602204-056.html Cite as:
[1630] Mor 2204
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It is now observed, That there is no necessity to make premonition and warning to any but the heritable possessor; but in the summons of declarator upon the order, not only the present heritable possessor, but also the heir, or apparent heir of the first granter of the reversion, must be summoned; and although the land analzied under reversion hath past through never so many hands, yet the redeemer needs not summon any but these two.
Fol. Dic. v. 1. p. 136. Spottiswood, p. 260.*** The same case is reported by Durie:
One Fisher's predecessors having disponed some annualrents out of lands re-deemable, conform to a reversion, the right of the which annualrents being acquired by Brown, a smith, against whom an order of redemption was used” and declarator thereon sought; The Lords found no process upon that declarator, because none was summoned thereto, to represent the granter of the said reversion; but because it was in facto antiquo, and it was not known who was of kin to the said person who granted the said reversion, therefore the defender was ordained to condescend who was apparent heir to him, who ought to have been summoned; but this decides not the doubt arising on the 27th act, 5th Parl. James III. whether the order of redemption ought to be used against that person or not, or if it suffice that the singular successor only was warned by the order; for this decision was only for this citation to the summons of declarator; for albeit that was not now questioned, yet many of the Lords were of opinion, that the order needed not to be used against the apparent heir's foresaids, but only the declarator; but it would appear, that if the order needs not to be used against him, no more the declarator; and sicklike if he be necessary to be cited to the declarator, far more to the order.
