(1772) 2 Paton 258
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.
House of Lords,
Title of possession. — Objections to testing of deed. — Circumstances which elided such objection.
Vide Morison, p. 10805, for a full report of this case.
Feb. 21, 1769.
Nov. 29, 1769.
Dec. 6, 1770.
Infeftment in the superiority of lands had been taken, with possession thereon for forty years of the lands themselves, the property of which was also in the same person; but on a different title, viz. a title of apparency, the Court of Session held that this title was sufficient to acquire the fee of the lands by the positive prescription. There was a separate objection stated to the marginal notes of one of the deeds composing this title, as not being duly tested in terms of the act 1681. The Lord Ordinary pronounced this interlocutor:
“Finds that the pursuer has right to the Inch of St. Silvanus upon the positive prescription, and decern and declare accordingly.”
On representation his Lordship adhered. And on reclaiming petition the Court pronounced this interlotutor:
“That the defender has condescended on acts of homologation sufficient to remove the objection, that the marginal notes in the marriage contract 1687 were not tested in terms of the act 1681; but in respect of the infeftment in the person of Sir Thomas Bruce, on the precept of clare 1721, and of the infeftment in the person of Sir John (the respondent's father) on the precept of clare 1740; and of their possession of the island of St. Silvanus upon said infeftments for more than forty years, find that the pursuer, as heir to Sir John, has right to the said island in virtue of the positive prescription.”
Against these interlocutors the present appeal was brought.
After hearing counsel, it was
Ordered and adjudged that the interlocutors of the 21st February and the 29th November 1769, and also so much of the interlocutor of the 6th December 1770 as is complained of by the original appeal be, and the same are hereby affirmed; and that part of the interlocutor of 6th December 1770 complained of by the
Counsel: For Appellant,
For Respondent, Ja. Montgomery, Al. Wedderburn.