(1724) Robertson 459
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Reduction Improbation. —
In an action, where various objections were made to the pursuer's title, the Court having ordered production to be made, and afterwards granted certification; the judgment is reversed, and it is ordered that the defenders be not obliged to take a term for production, until the pursuer make out his title, upon which he founds his suit.
In 1719, the respondent brought an action of reduction improbation against the appellants before the Court of Session, in which he insisted for production of the rights and titles by which the appellants held or claimed the lands of Ormly, Slebster, milnlands and multures thereof, the towns and lands of Shanwell and Acharraskell, with the teinds and pertinents of the same; which had been part of the estate of Sir James Sinclair of Murkle, deceased. The circumstances of the case which gave rise to the action, as stated by the respondent, were:
That the respondent was the lineal descendant and heir of Sir James Sinclair of Murkle, who was heir of George late Earl of Caithness, who died without issue; so that all the estate of Caithness would, by the course of law, have come to the respondent, as well as the honours; but this Earl George was prevailed upon, without any valuable consideration, to make over his whole estate in Caithness to John late Earl of Breadalbane, deceased, the father of the appellant Earl John, subject indeed to a right of reversion not expressed in the deeds of conveyance, but in a separate deed, which was secreted, and which but lately came to the knowledge of the respondent:
That after the death of the said George Earl of Caithness, the said late Earl of Breadalbane possessed himself, not only of the whole estate of Caithness, which belonged to the said Earl George,
That the respondent claimed a right to the said lands of Ormly, &c. under a decree of apprising, obtained by John Murray of Pennyland, with sasine thereon, and which, after several mesne conveyances, was vested in the respondent: and some years ago, endeavours were used to settle differences between the respondent and the appellant the Earl of Breadalbane; but the other appellants, Sir James and John Sinclair, on purpose to prevent any agreement, in 1718 purchased the said lands of Ormly and others from the Earl of Breadalbane; but as the claims of the respondent were no secret, the Earl of Breadalbane was so cautious, as not to bind himself in warrandice of the purchase, but, on the contrary, the purchasers became bound to indemnify him.
To this action the appellants made defences; and the circumstances which gave rise to the action, as stated by them, were: That in October 1672, George late Earl of Caithness, by deed for a valuable consideration, conveyed to the late Earl of Breadalbane all the lands and estate in Caithness, particularly the lands of Ormly and others (before mentioned); in 1673 a charter of the premises was granted by the crown, upon which sasine was taken:
That part of these lands had formerly been the estate of Sir James Sinclair of Murkle, grandfather to the respondent; but being much encumbered, the several real securities affecting the same, which greatly exceeded the value of the estate, had been purchased by the said George Earl of Caithness, some time before the said sale, and these incumbrances were likewise assigned to the Earl of Breadalbane: and the respondent's father, by deed in 1677, reciting that his estate was under great encumbrances, and that the Earl of Breadalbane had right to the lands of Ormly and others part of the premises by apprisings and otherwise, therefore obliged himself, his heirs and successors, never to quarrel, question, or impugn his rights to the said lands:
That as the Earl of Caithness had been in quiet possession of the premises for several years before 1672, so the late Earl of Breadalbane, and the appellant the earl his son, had continued in quiet possession of the premises ever since; and in 1718, the earl, for a valuable consideration, sold the premises and all other his estates in Caithness to the appellants Sir James and John Sinclair:
That one John Murray, for a debt of the said Sir James Sinclair of Murkle, of 6000 merks Scots, in 1652 got a decree of apprising of the lands of Ormly and others, part of the premises, and likewise of other lands, part of the said Sir James Sinclair's estate, and thereupon took infeftment; but there being so many prior encumbrances upon that part of the estate conveyed to the Earl of Breadalbane, and of greater extent than the value of the lands, no possession was attained, by virtue of that decree, of any part of the premises conveyed to the Earl of Breadalbane; and the respondent having renounced to be heir to his father and grandfather, procured right to this old dormant apprising, and, under colour thereof, brought the present action.
The appellants in defence, at first, contended, that the right under which the respondent claimed was prescribed, no possession having been attained of any part of the lands in the possession of the appellants in 40 years after the date of the respondent's right: but the respondent offering, before the production of the deeds, to prove that several steps had been taken to prevent his claim from being prescribed, the Court, on the 2d of December 1720, “Found the allegation of prescription against the respondent's title, where the respondent offered to prove interruption during the running of the term to be assigned for production, could not stop the appellants taking a term to satisfy the production.”
It was then insisted by the appellants, that the decree of apprising was usurious, as having been taken for compound interest, and that it was therefore null and void. But after answers for the respondent, the Court, on the 4th of January 1721, “repelled the objection proponed against the respondent's title, that the apprising is usurious, and found that the respondent's title is sufficient to oblige the appellants to take a day to produce the right called for.”
It was next insisted, that the apprising under which the respondent claimed was led for a debt due by his grandfather, to whom he was heir apparent; that the respondent had been in possession of several of the lands contained in the apprising for a great many years, and that by his receipt of the rents the debt apprised for was more than paid; and this the appellants offered to prove by the respondent's oath; and if this were so, they contended that the respondent had no right to oblige the appellants to produce any of the deeds. The Court, on the 11th of January 1721, “Found that the appellants' objection against the apprising which is the respondent's title in this process, that the respondent has been in the possession of the subject apprised of such extent and for so long space as the free rents of the said subject intromitted with by the respondent, did exceed the sums in the apprising, is in this state of the process competent to be proved instantly by the respondent's oath.” But the respondent having reclaimed, insisting that his possession of the lands contained in the apprising was not by virtue of this deed of apprising only, but by virtue of other rights and diligences in his person, and therefore
The appellants were then directed to produce the deeds, and acts for the first and 2d term were pronounced, and they produced certain of the deeds called for; but not having made a complete progress of writs, the Court, on the 27th of December 1721, “granted certification against the appellants, and reduced and improved the writs called for, and that for not production and decerned.”
The appellants against this interlocutor presented two petitions, one of them stating that certain witnesses had not been examined, and craving further time for that purpose; the other stating that the Earl of Breadalbane was in England, and there had been no opportunity to search his repositories, and praying that extract might be stopped till the 1st of June next. The Court, after answers for the respondent, on the 31st of January 1722, “stopt extracting the decree of certification till the 15th of February thereafter.”
Entered, 12 Feb. 1721–2.
The appeal was brought from “several interlocutory sentences of the Lords of Session of the 4th of January, the 7th and 18th of February 1721, the 27th of December 1721, and 31st of January 1722.”
Heads of the Appellants' Argument.
A bare suppositition that the respondent's title might not be prescribed, was not a sufficient reason to decree the appellants to produce the several titles under which they claimed. It had been much more just, when this objection was stated, to have considered that point first; for if it was with the appellants, there was then an end of the action; and to what purpose should the appellants be obliged to enter into an expensive action, and to produce their title deeds, when probably it may be found that the respondent, the pursuer, has no title at all. And though the interlocutors finding the appellants must take a term to produce their rights, proceed on the supposition that the respondent was before the same term to prove interruptions; yet the decree of certification is pronounced against the appellants without the respondent's having proved any of these supposed interruptions.
There is the less reason to indulge the respondent in this case, because he is the heir of the original debtor, and refuses to enter heir to him, and be Subjected to his debts; but has purchased for a Small sum this old dormant apprising, and would, under colour of that, defeat the appellants and others, who are just and lawful creditors of his predecessors: great care ought, then, to have been
The appellants ought either to have been let into a proof of the respondent's possession, and receipt of the rents and profits of part of the lands mentioned in his apprising, in order to extinguish his demand, or otherwise he ought to have made oath upon that single point.
Nor can it alter the case, that the respondent pretended to have other titles, to the satisfaction of which he could impute his receipt of the rents; for these titles ought certainly to have been produced in order to satisfy the Court that they were of validity. Nor could it be sufficient for the respondent to make oath, that he had other titles, without obliging him to condescend upon and produce them, for that is admitting him to be judge for himself; and probably these other titles may be void too; and it is sufficient for the appellants to retain the possession they have, and likewise their deeds, till once the respondent shew, that he has a title to call theirs in question; and it is impossible to determine that before they be produced.
It would be hard that the appellants, Sir James and John Sinclair, because the other appellant the earl, from whom they purchased, was necessarily out of the kingdom, whereby they could not have an opportunity of searching for the papers that were wanting, should be for ever debarred from producing or making use of these deeds, which was the effect of the decree of certification, by which means the rights which they have as honest and just creditors, might be entirely frustrated.
Heads of the Respondent's Argument.
The prescription alleged by the appellants was interrupted, both by his minority and by several processes, which he immediately made appear in part by writings produced in this suit, and offered to bring a further proof, if necessary, against the time the appellants should produce their titles.
The objection made by the appellants, that the apprising was satisfied by receipt of rents, could not in form be proponed or
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a) The appellants also state the grounds on which they contended that the decree of apprising was usurious, and therefore null; the respondent gives a counter statement; but nothing can be given distinctly upon this point; these statements are therefore omitted.
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( a) The appellants also state the grounds on which they contended that the decree of apprising was usurious, and therefore null; the respondent gives a counter statement; but nothing can be given distinctly upon this point; these statements are therefore omitted.
Judgment, 20 March 1723–4.
After hearing counsel, It is ordered and adjudged, that the several interlocutory sentences complained of in the said appeal, except so much of the interlocutor of the 4th of January 1721, as relates to the objection made by the appellants to the apprising, under which the respondent claims upon pretence of its being usurious, and allowing too much interest, be reversed: and it is further ordered, that the Lords of Session, in the further progress of the cause, do not oblige the appellants to take a term for production, until the respondent, the pursuer below, shall have made out his title upon which he founds his suit.
Counsel: For Appellants,
For Respondent, Ro. Dundas. C. Talbot.
The question upon the first appeal between Sir Hew Dalrymple and the Hon. Mrs. Fullarton, relative to the estate of Bargeny, 18 Dec. 1797, was upon a point very much like the present; and the judgment then pronounced was of the same import as that in the present case.
A similar judgment to this is given in a reduction improbation brought by an heir, Duff of Braco and others v. Earl of Buchan, on appeal, 15 April 1725.