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Possession of a part of lands held pre indiviso, by a title, bars summary removing from the other parts.
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In an action pursued at the instance of contra Carmichael of Pottishaw to find caution to pay the duties contained in the tack set to him of an quarter of the lands of or else to remove from the lands as if he had no tack, conform to the order usual in such causes; the Lords found, That albeit the defender found no caution to pay the duty, yet that the conclusion of the summons ought not to be granted, viz. to decern him to remove therefrom, because the defender alleged, That he bruiked the pursuer's third part of the lands contained in the tack libelled, with the two parts pertaining to the Earl of Linlithgow pro indiviso, so that he could not know the third part thereof to remove therefrom: This allegeance was found relevant, albeit the pursuer replied that the defender ought not to be heard, to make that a pretence of his not removing, seeing he had become his tenant in his third part, and taken tack from him thereof, and paid him duty therefor, and so could obtrude no-thing against his removing therefrom, being his own deed, which he could not misken; especially seeing he clothes not himself with any other right to the said third part, nor with any right to the other two parts; and therefore, with the more reason, he ought to give again the land which he received from the pursuer by virtue of the task, and that it was not necessary to him to allege or prove against his own tenant, that the third was severally known from the two parts, which he should dispute when he had to do with the heritor, or any other except his own tenant; notwithstanding of the which answer, the exception was sustained, and the defender assoilzied from the removing.
