Scottish Court of Session Decisions

Subject_1 JUS TERTII.
Subject_2 SECT. III.

Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.

Lord Frazer
v.
Laird of Phillorth

Date: 18 July 1662
Case No. No 32.

In a declarator of property, the defender pretending no right in his person, was not allowed to object to the pursuer's title.

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The Lord Frazer pursues declarator of property of the barony of Cairnbuilg, against the Laird of Phillorth, as being infeft as heir to his father; who was infeft as heir to his grandfather; who was infeft upon the resignation of Frazer of Doors; and also upon the resignation of the Laird of Pitsligo, who was infeft upon an apprising led against Doors; and also as being infeft upon an apprising at the instance of one Henderson, led against Doors; and declared that he insisted primo loco upon the two first rights flowing from Doors and Pitsligo. The defender alleged absolvitor, because the defender, in an improbation against the pursuer and his father, obtained certification against Doors' sasine, so that it being now improved, all the rights libelled on, fall in consequentiam, because Doors is the common author to them all; and if he had no real right, all their rights are a non habente potestatem; so that now the pursuer has no more in his person, but a disposition made by Phillorth's grandfather to Doors, and a charter following thereupon, and is in the same case, as if Doors upon that ground were craving declarator of property, which he could not do, nor would the Lords sustain it, albeit there were no defender, because that can be no right of property where there is no sasine. The pursuer answered, 1mo, That the defender is no ways relevant, nor is the pursuer in the case of a declarator, upon a disposition or charter without a sasine, because he produces a progress of infeftments, and is not obliged hoc ordine, to dispute Doors his authors' rights as being a non habente potestatem, which is only competent by way of reduction; some representing Doors his author being called. 2do, The defence is no way competent to this defender, unless he allege upon a better right than the pursuer's; for the pursuer hath done all that is requisite to instruct his declarator, by production of his infeftments, and his author's rights are presumed, and need not be instructed; and albeit the defender be called, yet he cannot quarrel the pursuer's author's right, or hinder his declator, unless he allege upon a more valid right in his own person. 3tio, The defence ought to be repelled, as proponed by this defender, because he represents Frazer of Phillorth his grandfather, who disponed the lands in question to Doors, and was obliged to infeft him, and did de facto resign in the King's hands in his favour, and so personali objectione, umquhile Phillorth Door's author, would be for ever excluded from objecting against Door's right which flowed from him; so neither can the defender, who represents him, object against the pursuer, who is successor in Doors' rights. The defender answered, That being called, albeit he had no right in his person, he might propone a defence upon a nullity in the pursuer's right, viz. that it is a non habente potestatem, which is very competent here by exception, this declarator being judicium petitorium, wherein he may well repeat this defence, without necessity to call Doors; because Doors being called in the improbation, all infeftments in his person are improven for not production, and so the reason is instantly verified; and albeit he were successor to his grandfather, (which he denies) yet he may well allege that any right flowing from his grandfather is personal and incomplete, and can be no ground of declarator of property.

“The Lords repelled the defences, and found it not competent to the defender to quarrel the pursuer's author's right, unless he had a better right.”

Fol. Dic. v. 1. p. 519. Stair, v. 1. p. 128.