Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 INFEFTMENT.
Subject_3 I. A precept of clare constat, having been granted to the person who was the apparent heir, in liferent, and to his son in fee, infeftment taken thereon to them in the same terms, in so far as it was granted to the son in fee, found to be an erroneous infeftment.

II. Nor is it a good title of prescription to support adjudication without a special charge, led against the person so erroneously infeft, within 40 years from the date of said infeftment, and challenged within 40 years of its own date, and of the charter and infeftment thereon, though after the expiration of its legal, so as to cut out the claim of his heir to the lands adjudged.

Thomas Finlay
v.
Thomas Morgan

Date: 27 January 1774

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[Fac. Col. VI. 274; Dict. 6904.]

Coalston. The objection may be a legal objection, but it is a thin one. A vassal is not bound to take a precept of clare constat, if it contains any variation from the former investiture. If he consents to take it to himself in liferent, and to his son in fee, there is no great impropriety in this. If the case of Landales is not in point, which I have had no opportunity of considering, I would review the interlocutor formerly pronounced in this case. As to the second point; the title may be good by the positive prescription, which has the effect to establish the right of the grantee. An heir of entail makes up his titles, leaving out the irritant clauses, possesses for 30 years, then sells, the purchaser may impute the 30 years to make up his right by prescription.

Kaimes. All this is very right, if there was a titulus habilis ad transferendum dominium; but a superior cannot grant a precept of clare, except to the heir: no, not with the consent of the heir; that was the case of Landales. As to the case of the heir of entail, it is rightly put by Lord Coalston, because an heir of entail is a fiar absolute, though limited by clauses: when he departs from the entail, there is no more but a ground of reduction. There is a certain distinction between grounds of reductions and grounds of nullity.

Pitfour. I cannot call back the judgment of this Court. The distinction was thin, but still there was a distinction.

Justice-Clerk. The Court found the infeftment erroneous, and properly; but, in effect, that resolves into a nullity: the precept is no title on which prescription could begin to run, for it gave the liferent to one who was fiar, and the fee to one who had no right at all. After the long course of time during which this right has remained, without challenge, I would support the diligence for the accumulated sums and penalty.

Kaimes. I cannot go so far in support of the adjudication: it was deduced not against a feudal debtor, but against an apparent heir.

Hailes. I have the same difficulty: How can we give such effects to an adjudication which we must, however unwillingly, find to be intrinsically erroneous?

Kennet. The word erroneous was put into the interlocutor, that the separate defence of prescription might remain entire. The case of Landales does not apply; there there was a titulus habilis ad transferendum dominium, but no prescription. Here the title is erroneous, and would always have continued so: besides, if it were a title for positive prescription, yet here another and a proper title was made up within the 40 years.

On the 27th January 1774, “The Lords restricted the right of the defender to principal sum, interest, and necessary expenses, accumulated at the date of the adjudication;" varying Lord Kaimes's interlocutor.

Act. R. M'Queen. Alt. A. Wight, A. Lockhart.