What Title requisite in the Positive Prescription.
Subject_3 SECT. II.
Title requisite to Heirs.
Purdie v. Lord Torphichen
Date: 9 November 1739 Case No. No 87.
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In a competition about the property of a land-estate, one of the parties founded upon the positive prescription, and produced instruments of sasine in the person of his author and his predecessor, standing together for the space of 40 years, proceeding upon precepts of clare constat. It was objected, with regard to one of the instruments of sasine, taken in the 1696, That it was null, the superior, who granted the precept of clare constat, being at that time dead, which was offered to be proved, whereby the precept fell, and consequently this sasine could be no foundation for a positive prescription. In answer, it was admitted, That if the sasine upon which the prescription is founded were null in point of solemnity, as wanting symbols, or such like, there could be no prescription: But where there is no objection to the sasine itself, but to the warrant of the sasine, which the possessor is not bound to produce to support his prescription, the very intendment of the statute is, to remove all objections against the title, other than that of falsehood. The Lords found, that the infeftment in the 1696 is a habite title of prescription.
Fol. Dic. v. 2. 103.*** Lord Kilkerran mentions this case in this manner:
The exception of precepts of clare constat in the 35th act of the Parliament 1693, was found to be absolute, and that such precepts became ineffectual, not only where the receiver, but also where the granter died before sasine taken thereon, though still such precept and sasine was understood to be a title of prescription.
But when the obtainer of a precept of clare constat, who had taken his sasine after the superior the granter's death, had conveyed the lands to a singular successor, who had obtained from the succeeding superior many years thereafter a confirmation of all rights, titles, and securities, in respect the obtainer of the said precept of clare constat was then on life, although the confirmation was only in the foresaid general terms, the same was found to be effectual to the purchaser, and not challengeable by the heir of the ancient vassal predecessor of the obtainer of said precept.
This confirmation was considered as of the same effect as if the superior had renewed the precept of clare to the obtainer of the former, though it did not appear whether or not he knew that he was then on life.
Kilkerran, (Precept of Clare Constat) No 2. p. 413.
