Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PRESCRIPTION.

Wilson
v.
Campbell of Ottar;

and

M'lean
v.
Duke of Argyle

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Where a person, standing infeft in lands as proprietor, purchases in a liferent affecting these lands, prescription will run in his favours against the person and his heirs from whom the liferent flowed. The liferent will be considered as a burden upon his possession; and his possession, even under that burden, and more so when freed of that burden, will be considered as in virtue of his property as dominus, and give him the benefit of prescription. If indeed the acquisition of the liferent had been the commencement of the possession, some think that it ought to be different; quia nemo potest mutare causam possessions, &c., as in the case of Jeffrey Irvine against Douglas, February 1770, affirmed in the House of Lords, 26th April 1770, where a person entering by tack, but afterwards acquiring the right of property, was not allowed to ascribe his possession to the last, but to the first, in competition with the person from whom the tack and the possession flowed. The above general point was fixed by decree of the House of Lords, in the case of William Wilson against Campbell of Ottar; and the Lords were of the same opinion, 2d July 1777, in the case of M'Lean of Drunnia against Duke of Argyle. In the case of Ottar, the widow had been regularly infeft in the liferent of certain lands, by way of jointure, and had got possession before any diligence was done against the estate. The adjudger acknowledged her right; and, when he afterwards sold the lands, he excepted the widow's liferent from the warrandice, and gave the purchaser an equivalent of other lands during the subsistence of the liferent,—which equivalent the purchaser afterwards exchanged with the widow for her jointure lands. The particular mode of executing this bargain did not appear. On the one hand, it was argued, that the purchaser must be understood as having possessed in right of the widow and of the transaction with her; and therefore could not apply the possession to his own charter and sasine. On the other, that, standing infeft in the lands by charter and sasine, and having possession of them for 40 years tanquam dominus, he was secure by the positive prescription, and it was no matter how possession was obtained. The Lords gave judgment in favour of the pursuer, and against the prescription; but this judgment was reversed by the House of Lords. It was conceived to be highly inexpedient and endless for Courts to make inquiries about the origin of possession, after it was continued for forty years, and complete heritable titles in the possessor's person.