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Scottish Court of Session Decisions >>
Earl of Kinghorn v Strang. [1630] Mor 6630 (4 February 1630)
URL: http://www.bailii.org/scot/cases/ScotCS/1630/Mor1606630-035.html
A general service is a good title in an improbation of a predecessor's deed, which will infer warrandice against the pursuer.
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In an improbation, the Lords found, that one pursuing for reduction and improbation of evidents of lands made by the pursuer's father, for improbation whereof he pursued as heir to his father, maker of these writs, had good action and interest as heir to pursue the same, albeit he was neither infeft himself in these lands as heir, nor yet did libel that his father was infeft; for he being heir, and so subject to warrant the deed done by him to whom he was heir, he might seek reduction and improbation; but hoc titulo, as heir, if he be not infeft, he could not pursue reduction of the writs made by his father of these lands.
And betwixt the same parties an infeftment having followed upon a comprising, proceeding upon a sentence of non-entry, obtained at the instance of one who was made assignee to the gift of non-entry by the donatar thereto, this infeftment, comprising, and sentence, being desired to be reduced, because the assignation was alleged false and feigned, there having intervened 48 years since the infeftment and comprising foresaid was expired; the Lords found, after so long a time the party was not holden to produce this assignation, and therefore that the sentence, comprising, and others following thereupon, ought not to be reduced for not production, that writ never being called for, nor quarrelled at any time before, and the comprising thereupon having taken effect, by infeftment and possession continually sinsyne unquarrelled, and the assignation not being a material and fundamental right of the land, and the pursuer having no right from the cedent.—See Prescription.
Act. Advocatus & Nicolson.Alt. Stuart & Aiton.Clerk, Gibson.
Fol. Dic. v. 1. p. 442. Durie, p. 490.*** Spottiswood reports this case:
In the action of improbation and reduction, pursued by the Earl of Kinghorn against George Strang, the Lords found, that none ought to improve an assignation, but only he who succeeds to the cedent, or deriveth right from him.
Spottiswood, p. 169.*** This case is also reported by Auchinleck.
1630. February 5.—In an action of improbation and reduction, pursued by the Earl of Kinghorn against George Strange, for production of writs made by the Earl's grandsire, to whom he was served heir, and for comprising and assignation made to him, at whose instance the comprising was deduced against the Earl's father, and for writs made by the Earl's goodsire and grandsire; it was alleged, Seeing the Earl had not libelled, that he was heir to his father, nor that his father was heir to his goodsire, and so forth; that no writs made by the grandsire, goodsire, or father, could be produced. To which it was replied, That the Earl offered him to prove, cum processu, that he was heir to his father, and that his father was heir to his goodsire, &c. The Lords sustained the summons, by reason of the reply.
