Title to Exclude. - When Proponable. - What Title Sufficient. - What the Effect.
Cuming v. Abercromby
Date: 9 June 1741 Case No. No 149.
Defenders in an improbation were allowed before production, to prove by witnesses, their own and their authors' immemorial possesion of the estate controverted.
Click here to view a pdf copy of this documet : PDF Copy
It is a settled point in form, in a reduction and improbation, that the defender producing a right, whereby he pleads to exclude the pursuer, will not, after extracting the act on the first term, be allowed a proof to support his plea; but even where the defender produced a right in initio to exclude the pursuer, and in support thereof insisted for a proof of 40 years possession, a doubt was stirred by some of the Lords, whether or not in any case the defender, in a reduction and improbation, could be allowed to plead exclude, unless the right produced by him was such, as of its own nature did exclude without the aid of a proof.
But it was observed, that anciently there were no such general improbations as are now in use, calling for all a man's writs; that there was no other improbation anciently known, but that wherein special writs were called for to be improved as false, and then there could be no excluding the pursuer on any pretence; but now for a century the general improbation now in use has been practised, as what we call a tentative process, against which it cannot be refused to the defender, in consistency with the act of prescription, to plead an exclusive right, and to support his plea by proof; for as it is statuted by the act of prescription, that after one has possessed 40 years upon an habile title, he cannot be disturbed nor disquieted upon any ground whatsoever, except falsehood; to refuse him a proof of possession in support of his plea of exclude, would be directly to refuse him the benefit of that act of Parliament; for then he would be disquieted notwithstanding his 40 years possession on his title produced, were he notwithstanding obliged to produce his charter-chest to be pryed into by all and sundry.
The Lords “found that the defender ought to take a term in the improbation, but that he should be allowed the same term to prove possession in order to support his allegeance of an exclusive right.”
Fol. Dic. v. 3. p. 311. Kilkerran, (Improbation.) No 2. p. 280.*** C. Home reports the same case:
In this process of improbation, the defenders insisted for a diligence against witnesses, for proving their own and their authors' immemorial possession of the estate.
Answered for the pursuer, That the form of the action excluded the allowing any proof by witnesses, until the chequer were closed by a certification; that the defender behoved to take terms to produce, unless he could exclude the pursuer's title by written documents; that no proof by witnesses of any sort could be admitted, till the production were closed; that no act of litiscontestation could be pronounced, until the production were closed; see 19th January 1672, Earl of Queensberry, No 142. p. 6717; 21st January 1709, Finzian, No 147. p. 6720; 8th July 1738, Ainslie.*
Replied, The law allows this process to try the rights to their predecessors' or authors' estates, and in that view it is reasonable. But on the other hand, the law has secured proprietors against the unnecessary propaling the titles to their estates, and the giving an opportunity to prying people to discover any accidental defects that might be in them, however equitable and just their title were; therefore, it has always been held a good defence against this process, and against all other production, if the defender instructed an absolute right of property in the estate. 2do, A charter and sasine, with 40 years possession, is a sufficient right to any estate in Scotland; if this were not true, no body could
* This is probably Ainslie against Watson, mentioned p. 6722, although the dates are different.
be secure from propaling the titles to their estate, to any person whose predecessors, at whatever distance of time, were possessed of the estate. 3tio, The defenders cannot discover upon what ground this pretended form of process is founded; the process itself is not grounded on any statute that has given it this form; and as it must be allowed a good defence against producing their titles, that the estate is their property, they must be allowed the opportunity of proving the same; for that a defence should be good, and yet the party not allowed to prove it, seems to be a contradiction.
The Lords allowed the defenders to prove their possession for 40 years backward, &c.
