What Title requisite in the Positive Prescription.
Subject_3 SECT. I.
Title requisite to Purchasers of Land, and to Adjudgers.
The Administrators of Heriot's Hospital v. Robert Hepburn
Date: 17 December 1695 Case No. No 82.
A procuratory of resignation, with a sasine relative thereto, was found a sufficient title for prescription, although the precept was wanting.
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The Lords advised the debate between the Administrators of Heriot's Hospital and Robert Hepburn of Bearford, anent the mortified annualrents acclaimed out of his tenement in Edinburgh, called the Black Turnpike. On the 29th of December 1691, the Lords had found, that Bearford's and his author's prescription and immemorial possession without interruption, both prior to the act introducing prescription in 1617, and since the same, could not defend him, because the Hospital consisting of minors, (as all orphanotropbia,) prescription could not run against them; and which decision is recorded in Stair's Institutes, B. 2. T. 12. § 18.—The Lords having heard them at great length on their mutual reasons of reduction against one another's rights; such as that the Hospital's mortification was a non habente potestatem, no right being shown in the Bishop, the mortifier, except an obligement by the two sisters, called Crichton, to dispone, which was merely personal, and never perfected, and related only to a part of the land;—and, on the other hand, it was objected against Bearford, That he produced nothing but unconnected and in-consistent progresses from the Robisons and the Crichtons; and, at best, they were only sasines upon hesp and staple, which, though a manner of conveyance within burgh, yet give no right without production of their warrants, as had been frequently decided, and, particularly, 21st June 1672, Mitchell against Cowie, voce Proof; and 11th February 1681, Irvine against Corsen, Ibidem.—The Lords thinking both their rights defective, shunned to determine thereon, but recurred to the first point anent the prescription; and, after considering the act of Parliament 1617, they found sufficient ground to repone Bearford against the former interlocutor, there being, as yet, no final definitive sentence in the case to make a res judicata; and found the exception of minority, contained in that act, as sufficient to elide prescription, was only that species of minority that run out and terminated at the age of 21, which was not Heriot's Hospital's case; that never expires, the boys being always turned out at their age of 16, and so it is a succession of perpetual minors; and found the Hospital not within the exception of the act of Parliament, which is stricti juris not to be extended, especially to casus insoliti et incogitati; and, therefore, preferred Bearford on the head of prescription, unless the Hospital would reply upon interruptions within the last 40 years. The case was learnedly argued on both sides; for instances were given in behalf of the Hospital of perpetual minorities, and yet such as would have the benefit of the exception in the act of the grand prescription. Thus, one dying at 21, and leaving a boy of a month old, and he marrying at 20, may leave another infant, and so for many generations, and yet they would all have the defence of minority. The title of the Lord Jedburgh is entailed to the eldest son of the Earls of Lothian, and sleeps while that does not exist, and so soon as he attains to be Earl; so this may prove a continued tract of minors, and would certainly have the benefit thereof. On the other hand, it was urged, How insecure this would render all commerce and transactions with such Hospitals, and destroy property; and at this rate, if they were infeft in ward lands, they would be in perpetual ward, which were absurd and prejudicial to the Hospital's interest; and in France, where they have such foundations, called Maison-Dieu des enfans trouvez, being Hospitals of foundlings, though minors, yet their Lawyers observe, they have not the privilege, of minority.
1697. June 10.—Whitelaw reported the Administrators of Heriot's Hospital against Robert Hepburn of Bearford, mentioned December 17th, 1695.— The Lords had found the Hospital had not the benefit of the exception of minority, contained in the act of prescription, but that the same ran against them, as well as if they were majors; and since that time, the Lords, by another interlocutor, found that sasines upon hasp and staple having no other warrant but the clerk of the burgh's assertion, was not a sufficient title for prescription, and not contained in the act of Parliament 1617, which mentions sasines upon retours, charters, and precepts of clare constat, and no word of hasp and staple; so that acts of Parliament being strictissimi juris, are not to be extended; and these being omitted, it must be presumed to be casus de industria omissus, and not per incuriam. Bearford reclaimed against this by a bill, showing this preparative would wholly frustrate and evacuate the benefit of prescription quoad lands within burgh, where the usual way of infefting was by hasp and staple. The Lords waved the reconsideration of this point, in regard he founded on another title of prescription, viz. a procuratory of resignation, and a sasine following thereon, in 1517, with 40 years possession subsequent to the same. To which it was answered, This was no more authorised for a title of prescription by the act of Parliament, than a sasine by hasp and staple, and was not the immediate warrant of the sasine, wanting a precept of sasine. Replied, If it had been on a precept, he needed not recur to prescription; for the validity of such a complete right would have preferred him; and according to Sir George M'Kenzie's Observations on the said act, a disposition alone, without any other warrant of the sasine, is enough for prescription.—The Lords found this procuratory of resignation, with a sasine relative thereto, a sufficient title for prescription. Then it was objected, That the sasine produced was only a tranaumpt out of the official (in whose place the Commissaries after the Reformation succeeded) of Louthian's book, and bore no citation of parties, but only by a general edictal one at the church-door of St Giles's. Answered, It was already sustained as sufficient to exclude prescription, and satisfy the production, and could not be quarrelled now.—The Lords found the transumpt probative in re tam antiqua. Then, for connecting the progress for making up the 40 years, the Lords remitted the perusal of the evidents to the Reporter.
1697. June 18.—The cause between Heriot's Hospital and Bearford, mentioned 10th June current, was farther heard, upon the interruption produced by the administrators, by a summons executed in 1648; against which many nullities were objected by Bearford; as that the body of the summons is blank, both as to the names of the persons defenders, and the writs; and though Bearford's father be named in the executions, yet that cannot connect nor tack, it to the summons; because the execution is on a paper a-part, and does not, express the pursuer, and might have been the execution of another process likeas, the prescription has run since; for the next interruption is not till December 1689, and so there is 16 months above the 40 years; and though, at the Revolution, some time was counted, yet that will not bring it within the 40 years. Answered, Executions unformal and null in themselves quoad the effect of sustaining process, yet may be good and valid interruptions, as has been oft found by the Lords; 25th November 1665, Whyte contra Horn, No 44. 10646.; 14th July 1669, Earl of Marshall contra Leith, No 8. 10323.; 6th July 1671, M'Crae contra Lord M'Donald, infra, h. t.; and 9th January 1675, M'Intosh contra Fraser, infra, h. t.: And though it be in a paper a-part, and not indorsed on the back of the summons, yet that has been sustained for an interruption, the pursuer giving his oath that he found it so; 11th February 1673, Muir of Rowallan contra Lawson, infra, h. t. And, to prove that prescription is not run since that interruption in anno 1648, not only must the inter-reign in 1689 be deduced, but also the surcease of justice at the English invasion, and the time the Hospital was then under sequestration, must be subduced, they being non valentes agere, as was decided in a parallell case, 25th January 1678, Duke of Lauderdale contra the Earl of Tweeddale, infra, h. t. Replied, That whatever might be done in the short prescriptions, as the triennial, or the like, yet, in the grand 40 years prescription, no time is discounted, save what is done by an express law; else if one would precisely make it only to consist of tempus utile, wherein judicatories are sitting, and there is copia adeundi prætorem, then Sundays and Mondays behoved also to be discounted, and all the anniversary vacation-days. The Lords decided only on the first objections against the legality of the execution, and found it so null, as they would not so much as allow it to serve for an interruption; and so preferred and assoilzied Bearford from this reduction and poinding of the ground pursued against him, for the ground-annual of 48 merks out of the tenement called the Black Turnpike belonging to him.
Fol. Dic. v. 2. p. 103. Fountainhall, v. 1. p. 688. 774. & 777.
