Subject_2 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.
Lord Balmerinoch v. -
Date: 22 June 1671
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A man grants an infeftment of annualrent, which he appoints to be uplifted out of two tenements of land, whereof he had several seasines, and of both which he was heritor. The creditor is ever in possession, use, and custom of uplifting his annualrent out of one of these tenements, and never out of the other; for though the duo tenementa diversa were aliud et aliud corpus in themselves, yet as to the jus pignoris constitute therein to the creditor, that was indivisible, and so it was in his option to betake himself either to the one tenement or the other. Thereafter the common owner of both the said affected tenements, sells them to sundry persons, and the right of that tenement out of which the creditor was in use to uplift his annualrent for the space of sixty years and upwards, comes in the person of the Lord Balmerinoch, who pursues the heritor of the other tenement, (which was also bound by the first original infeftment of annual-rent,) to relieve him of the half of the said annualrent.
Excepted,—He can never be made liable for the half of the said annualrent, because he has brooked and possessed his tenement these forty years and more, free of the said annualrent, and so has prescribed liberum, tenementum.
Answered,—He cannot be heard, because in all law and reason, the creditor's possession by uplifting his annualrent out of the other tenement, must be interpreted to retain to him his possession of this also, and so interrupt the running of prescription.
Replied,—Esto it were granted that prescription will not run against the creditor, so as to impede him, though after an hundred or two hundred years, to come back upon that tenement, though all the while he should have lifted nothing furth thereof; yet the case must not be reputed the same with a conjunct debtor, and to give him the power, after forty years that I and my tenement have been free of him and of any others, and so prescribed immunitus, to seek his relief of me; vide supra, No. 136, [21st February 1671.]
The Lords not the less found that he was liable in relief, though he had been able to say free for an hundred years together; and that he could lay no claim to prescription, because the use of payment out of the other tenement, as being a part, interrupted the prescription quoad the whole. This was thought a very hard interlocutor, and dangerous, nec transit quidem mihi absque difficultate; see 20th July, 1658, Nicholsone contra the Laird of Philorth. Item servitus is a res meræ facultatis quæ numquam præscribuntur.
The Lords found that tenement which was all the while free, would be bound to relieve the other tenement, for a proportional part conform to the value of that tenement, being compared with the tenement that bore the burden. See a parallel case, 6th November 1678, Hay and Milne.
