Vicennial Prescription of Retours, and of Holograph Writs.
Lamb v. Anderson
Date: 11 January 1673 Case No. No 185.
A younger brother being retoured as heir to his father upon the supposed death of an elder brother who was out of the country; the elder brother afterwards returned, but died without impugning the service. The retour was found null by exception at the instance of a creditor of the defunct, who had charged him to enter within the 20 years, not withstanding of the act anent reduction of retours.
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William Lamb being entered as heir to his father in certain tenements in and about Stirling, and infeft therein, and having granted bond to John Anderson containing an assignation to the mails and duties of the lands, John entered into possession, but shortly thereafter, Christopher Lamb, William's elder brother, who was out of the country when William was served heir, returning home, the said John having obtained a bond from him, he thereupon charged him to enter heir to his father, and apprised the same tenements from him as charged to enter heir, and hath possessed thereby twenty years, long after the expiring. Now the said William Lamb pursues the said John Anderson for exhibition and delivery of the writs of the lands, who alleged, Absolvitor; because the lands and writs belonged to himself, having right thereto by an expired apprising, led against Christopher Lamb, the pursuer's elder brother. It was answered, That the defender could make no use of the apprising against this pursuer; 1mo, Because he having entered in possession by a right from the pursuer, he could not intervert the same by an apprising led against his brother, but must first restore the possession and writs, and pursue upon his other right, as accords; 2do, By the act of Parliament anent the prescription of retours, subjoined to the general act of prescription, it is expressly provided, That if retours be not reduced within twenty years from their date, they shall not be reducible hereafter. Ita est, this pursuer, albeit second brother, being served heir in the absence of his eldest brother, supposed dead, and who is now dead, and did never quarrel his brother's retour, the same is now unquarrelable; and it were most ridiculous and unjust, that the defender should not only intervert the pursuer's possession, but by an expired apprising exclude him for ever, when now he is the certain and uncontroverted heir, his brother being dead. The defender replied, That he did no wrong in apprising from the eldest brother, who returned shortly after his right from the second brother, because the second brother's right could not have maintained him in any judgment petitory nor possessory, but his service became null and void ex evidentia facti, without necessity of a reduction; and albeit parties deriving possession from others, cannot clothe themselves with other rights, but must restore that possession when the possession could defend them in a possessory judgment, or were of any advantage, yet when it could have no effect, either to defend the author or his assignee, it holds not; for if the eldest brother had pursued the second brother, or his assignee, for the mails and duties; if they had defended themselves upon the second brother's retour and infeftment, it would have been null by reply without any reduction, as hath been oft-times found by the Lords. And as to the act of Parliament, it takes only place in retours that require reduction, as when the controversy arises between several kinds of heirs, as of line, male, tailzie, and provision; but in the cases between; two brothers pretending heirs of the same kind both of line, the very appearance of the eldest brother makes the retour of the second to evanish without reduction. The pursuer duplied, That supposing that the second brother's retour might be void by exception or reply, yet it importeth not in this case, where the eldest brother was never retoured, and is now dead; neither was the matter ever in question, or the retour declared void, either by exception or reduction, so that now it must stand unquarrelable. It was triplied, That albeit the eldest brother never retoured, himself, yet the equivalent was done, in so far as the defender charged him to enter heir, and as charged to enter heir, apprised from him, and the act of Parliament anent charges to enter heir, and the charge itself, bears, That as to the creditor charged, the party charged shall be in the same condition as if they were actually entered; neither was their need of any process, seeing the defender was in possession, and whensoever the second brother's retour is made use of, the exception or reply against him, that it is null, is receivable ope exceptionis, and doth annul it ab initio; for though in reductions the effect sometimes is only from the sentence, and not ab initio, yet that which is null by exception, is always null ab initio.
In this case, the Lords first moved Anderson to declare his apprising redeemable by this pursuer within a year, and he having declared so, the Lords found, That the second brother's retour was null by exception, and that he had not the benefit of the act of Parliament anent retours, seeing within the twenty years the eldest brother returned, and apprisirig was led against him as lawfully charged to enter heir, and possession thereupon.
