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Scottish Court of Session Decisions >>
Edington v Home. [1672] Mor 11292 (24 July 1672)
URL: http://www.bailii.org/scot/cases/ScotCS/1672/Mor2711292-459.html Cite as:
[1672] Mor 11292
Prescription found interrupted by a summons of reduction at the instance of an apparent heir, though executed before his service.
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Mr George Edington having pursued improbation and reduction of the rights of certain lands against Home of Kimmergane, who hath been in possession more than 40 years; in which pursuit terms being taken to produce, with reservation of all defence in the cause, and against the interest of parties, and all the terms being now run, the pursuer craves certification contra non producta. The defender alleged no certification, because the pursuer's title being as heir to his predecessor, the same was posterior to his summons, and so the summons is null sine titulo. It was answered, That the Lords do frequently sustain process at the instance of heirs, though they be not actually entered the time of the citation; for, having in them the foundation of a right, though not perfected by the solemnities, the same, when done, is always drawn back to the date of the summons; albeit the titles of singular successors by assignation or disposition will not be sustained, if after the summons, having no anterior ground of right. It was replied, That though the Lords sometimes allows the title of heirs, though posterior to the summons, yet that is when no party hath interest; but here the sustaining, or not sustaining of this summons, carries the whole right of the lands in question; for the defender being in possession more than 40 years, he is tutus præscriptione, unless it be interrupted by this summons. It was duplied, That prescription is most odious, and therefore interruption is sustained upon summonses, albeit no decree can follow upon these summonses through any defect of the titles or formalities, because the very citation is indicatio animi, that the party intends to interrupt the prescription; and here the citation is not only within the prescription, but the pursuer's service as heir.
The Lords sustained the summons both for prescription, and sustained process in the reduction and improbation. See Quod ab initio vitiosum.
