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Scottish Court of Session Decisions >>
William Carnegie and Panter v William Dick. [1632] Mor 6639 (1 December 1632)
URL: http://www.bailii.org/scot/cases/ScotCS/1632/Mor1606639-044.html Cite as:
[1632] Mor 6639
A sasine upon a precept of clare constat was sustained as a title in an improbation, of rights made by the pursuer's father concerning the lands in dispute, the precept being produced cum processu, and evidence brought that the father was infeft.
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One Panter being infeft in some lands, upon a precept of clare constat, by the town of Montrose, superiors of the lands, as heir to his father, pursues reduction and improbation of the rights made of that land, by his father, to certain other persons particularly libelled, and consequently, that the comprisings flowing from these parties, alleged acquirers of the right from his father, might fall, upon this reason of reduction, because his umquhile father had never made any right thereof to them; wherein the defenders alleging, That they being infeft by the superior in the lands libelled, before the pursuer's precept of clare constat granted to him, that precept of clare constat, he never being served nor retoured heir to his father, could not give him interest as heir to instruct him active to be heir, to furnish him a title and action, as heir active, to reduce their rights, anterior to his, and public also; this exception was repelled, and the pursuer found to have sufficient interest, as heir instructed by the sasine, proceeding upon a precept of clare constat mentioned therein, to pursue this action as heir active so instructed, albeit he was not served nor retoured heir, in respect that the pursuit was only for reducing writs, depending upon the deeds done by his father, to whom he was so qualified heir, and in this subject of lands, wherein his father was infeft, and himself by virtue of that precept; whereas, if he had been pursuing as heir, by virtue of such a precept, extra hoc subjectum, the question had then been more considerable, if the deeds quarrelled had not depended only upon his father's fact; but it was found, that he ought to prove cum processu, that his father was infeft, and sicklike he should produce, in termino probationis, the precept of clare constat whereto his sasine was relative.
Act. Nicolson et Mowat.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 442. Durie, p. 655.
