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The Lord refused to sustain action at an apparent heir's instance reducing a disposition granted by his predecessor, unless the pursuer would enter heir, altho' thereby a passive title would be incurred.
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In a reduction of a bond of alienation of a tenement in Glasgow, made by umquhile David Muire, in favours of Janet Muire his father's sister, at the instances of the apparent heirs of the said umquhile David, the Lords found, that this action of reduction, moved at the instance of the apparent heir, could not be sustained to reduce an heritable disposition of lands, made by the defunct, to whom the pursuers were neither heirs, nor had any other real right to the lands; and this action was not sustained at the pursuer's instance, as apparent heir to the defunct, maker of the disposition, upon that interest, as if they as apparent heirs, might crave reduction to that effect, that they by the discussing of this action, might know whether they might enter heirs or not to the defunct; for they ought to consider of their hazard themselves, and ought not to be suffered to pursue upon that interest, for that end.
Act. Nicolson & Maxwel.Alt. Stewart & Gilmore.Clerk, Gibson.
Durie, p. 754.
