Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Errol v. George Seton of Barns
Date: 18 December 1702
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Sir John Seton, father to the said George, being married to Lady Margaret Hay, and provided her to a liferent-annuity of 2400 merks; and she having assigned the bygones of it to the Earl of Errol, he pursues a poinding of the ground; against which Barns craved compensation on a bond of 10,000 merks, due by Errol's predecessors, as her tocher; and Errol alleging that Sir John had assigned his lady to that sum, and from whom he derived right thereto:
Answered by Barns,—That the assignation was given to her by his father when in lecto, only five days before his decease, and that he had raised reduction thereof upon that head.
Errol contended,—His action of reduction was prescribed by the negative prescription; the assignation being in February 1659, and not quarrelled till the forty years were run.
Alleged for Barns, Into, His action would not prescribe, because he was non valens agere during the lady's lifetime, in regard she was liferenter of the sum, and it was wholly unnecessary for him to quarrel her right of fee till the liferent expired; as was found, the last of February 1666, Earl of Lauderdale against the Viscount of Oxford; and 5th February 1680, Brown against Hepburn. 2do, This assignation was a latent deed, so Barns, morally speaking, could not quarrel it till he knew it; which is of the nature of an exception, qua; non nascitur till the right be some way made use of or produced. And what if a deed done in lecto, or posterior to an inhibition, be kept quiet for forty years, and then insisted in; will it be a good defence to say, Your action of reduction, ex capite inhibitionis, or that it was on death-bed, is prescribed, because not intented within forty years of the date of the bond? I think it would not; and as little here. 3tio, The bond given by Barns to Lady Margaret, for her annuity in 1683, reserves, per expressum, Barns's reduction of her fee of the said 10,000 merks, which is a clear and plain interruption within the forty years; and as this prescription is odious, so the Lords have found interruptions favourable, 26th July, 1637, L. of Lawers against Dunbar; and 25th November 1665, White against Horn.
Answered for Errol to the first,—That Barns was valens agere, even cum ef-fectu, from the very moment of his father's death; and though she liferented the sura, yet nihil impediebat but he might, in a reduction and declarator, have annulled her right to the fee; and the decisions cited are only in the case of a positive prescription, and so are misapplied here. To the second, Latency is no defence against the long prescription of forty years; neither does law presume an heir to be ignorant of his father's debts, but on the contrary to know them. 3tio, Barns's obligation in 1683 favours Lady Margaret as much as him; for, as it reserves his power of quarrelling, so all the lady's legal defences are as fully, and with the same breath, reserved; which makes it as broad as long.
The Lords thought her being liferenter did not make him non valens agere in this case; but found his proponing compensation against the Earl in that 10,000 merks' bond, with his reservation in 1683, &c. were sufficient interruptions; and therefore his action of reduction, ex capite lecti, was not prescribed.
