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Kirkwood v Belshes. [1623] Mor 7017 (5 July 1623)
URL: http://www.bailii.org/scot/cases/ScotCS/1623/Mor1707017-080.html Cite as:
[1623] Mor 7017
What subjects are affected by this diligence. - Reaches acquirenda.
Kirkwood v. Belshes
Date: 5 July 1623 Case No. No 80.
Inhibition against the apparent heir of a debtor sustained, though he had neither entered, nor was charged to do so, he having, after the inhibition, served himself heir, and sold the lands.
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In an action of reduction pursued by Robert Kirkwood, writer, against John Belshes, for reducing of the alienation of the lands of Toffs, made to the said John Belshes by William Douglas, as son and heir of umquhile Archibald Douglas, which umquhile Archibald was debtor to the said Robert Kirkwood in a sum of money; whereupon the said Robert having served inhibition against the said William, as son and apparent heir to the said umquhile Archibald his debtor; upon the said inhibition he pursues reduction of the said alienation, as made after the said inhibition. This inhibition, which was the ground of the reason of reduction, was quarrelled by the defender, as not being lawful and sufficient to affect the land; seeing the party inhibited was not debtor to the pursuer; neither was he ever constitute that person, at the time of the executing thereof, who could represent the pursuer's debtor, either by charge to enter heir to his debtor, or by any summons or pursuit against him for that debt, owing by him as heir; but was only executed against him as apparent heir to his father; which was not any ground, which may be a lawful warrant to inhibit; for inhibitions ought not to be granted against apparent heirs for their predecessor's debts; and if any such be granted, when they are quarrelled, they should not be sustained.——The Lords repelled the allegeance, and sustained the inhibition raised and executed against the apparent heir of the debtor, seeing thereafter he had served himself heir to him, and had sold the said lands.
Act. Oliphant.Alt. Belshes.Clerk, Hay.
Fol. Dic. v. 1. p. 473. Durie, p. 69.*** Haddington reports this case:
In the action betwixt Robert Kirkwood and John Belshes, for redaction of John's infeftment of the Tofts, as granted after that William Douglas, John Belshes' author, was inhibited at Robert Kirkwood's instance;——The Lords sustained an inhibition raised against an apparent heir, who was neither served nor charged heir; and found, that whenever the apparent heir entered heir, the inhibition convalesced and was drawn back to the time of the serving thereof, and was a lawful ground to reduce all alienations made by the apparent heir, since the date of the inhibition.
