Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
Robert Farquharson of Finzean v. Sir Peter Frazer of Doors
Date: 21 January 1709 Case No. No 147.
The defender in an improbation having produced a charter and sasine on an apprising prior to the pursuer's right, without producing the apprising, the Lords granted certification contra non producta, altho' the defender offered to support his right by proving 40 year's possession thereon, which was not competent in that stare of the process to exclude the pursuer.
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In the reduction, improbation, and declarator, at the instance of Finzean against Sir Peter Frazer, the defender having produced a charter and sasine upon an apprising, anno 1653, of the lands in controversy, a year prior to the eldest right produced by the pursuer, the pursuer craved avisandum might be made with the production and certification quoad ultra, because, the charter produced could not exclude his title, unless the apprising on which it proceeded were also produced, seeing the charter is but a relative writ.
Alleged for the Defender, Though this charter and sasine per se within the years of prescription, would not suffice to exclude the pursuer, the same is a good title of prescription in the terms of the act 12, Parliament 1617, which doth not distinguish whether the charter be an original or relative writ: And the defender and his authors have possessed thereby for the space of 40 years.
Replied for the Pursuer, He must have certification contra non producta, unless the defender could exclude his title instanter by the writs produced; for prescription is not competent to be alleged in this state of the process to support the defender's right, which would lead the pursuer into an act of litescontestation, while he is only in an act of production, and can only be obliged to debate upon excluding in the terms of that act; seeing in a process of improbation, till the production be satisfied, there can be no dispute except upon dilatories against the interest of the pursuer, or his title. Nor can litiscontestation be made in this case, unless possession and prescription had been alleged in initio, which would have occasioned a complex act of production and litiscontestation.
The Lords granted certification quoad ultra.
Fol. Dic. v. 1. p. 451. Forbes, p. 309.*** Fountainhall reports this case:
1709. February 3.—Farquharson of Finzean pursues a reduction and improbation against Sir Peter Fraser of Durris, of his rights to the lands of Midbelty; and the terms being all run, Sir Peter produces a charter under the Great Seal, in 1653, of these lands from Oliver, then protector, and a sasine in his author's person. Finzean craves certification contra non producta, seeing it is only a charter proceeding upon a comprising, and the said comprising, being the warrant thereof, not produced; and so being an incomplete right, it cannot stop his certification. Alleged, It is sufficient to exclude you, because, 1mo, The charter is a year prior to any right produced in your person. 2do, It is valid by the act 12, Parliament 1617, introducing prescription, being more than 40 years ago; and so being fortified by prescription, there is no need by that act, to produce the warrant of the charter. Answered, It is not doubted but a defender in an improbation may say, I will not suffer you to get a certification contra non producta, because I have produced sufficiently to exclude your right; but then it must be such a production as instantly does it, without running into an act of further probation; but Sir Peter's is not such, for he must prove his 40 years possession to support it, and I must prove my reply of interruption, which runs a long course; and if you succumb, I just come back to the point I was at, of craving a new certification, after the delay of some years, which is absurd, and destructive of all form; and therefore this allegeance must be reserved to the debating of the reasons of reduction, after avisandum is made with the writs produced, and a warrant to discuss, and then it will come properly in; but here, it is noways competent. Replied for Sir Peter, My defence is instantly verified by my charter and sasine, dated more than 40 years ago, and prior to any right in your person; and possession is presumed conform thereto, unless you say interruption, or another possessed; and then it is not I, but your reply that gives rise to the delay. It is true, if the right produced were within prescription, then I behoved to produce the apprising, as the warrant of it; but being above 40 years, the title is good without the warrant. The Lords, by plurality, found a defender might exclude a certification, if it was instantly verified; but did not think Sir Peter's production a present verification, but behoved to run terms of probation to adminiculate and support it, which would make two acts of litiscontestation, and could not be received in this state of the process; and therefore granted certification, unless he produced the apprising as the title of his right. He was unwilling to produce it, because lawyers search nullities in such rights to overturn them, and a close charter-chest is oft the best security; but the Lords found ut supra. See Dunbar, 20th December 1662, No 140. p. 6715.; and 7th December 1667 Lauderdale, No 141. p. 6716.
