Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.

Johnston
v.
Balfour of Beath

1745, June 7.
Case No. No. 26.

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By marriage contract 1650, betwixt Robert Stuart of Beath, and the pursuer, she was provided to the liferent of the house, yards, and coal, and to an annuity to be uplifted out of the lands of L.1000 Scots yearly after his death. An apprising was led by her and her second husband, James Balfour, against her son, as charged to enter heir to his father, the said Robert, for payment of L.4500 of bygones; and in 1664 and 1694 obtained charter of apprising, on which sasine followed in 1699. In 1697 they disponed to their son Henry Balfour, on which he was infeft; and they and their heirs have possessed ever since, Johnston got a bond (I suppose in trust) from Balfrages, as apparent-heirs of Robert Stuart, and adjudged, and thereon pursued reduction; and Balfour produced the above charters and sasines, and offered to exclude, and to prove 40 years uninterrupted possession. I allowed' a proof, and assigned the same day for the first term; and he proved 60 years possession; but the pursuer produced the contract of marriage 1650, (but whereon no infeftment had followed) and a tack set by Marion Bruce and her husband in 1670, of a part of these lands, wherein she is designed liferentrix of the lands underwritten, but which was only signed by the tenant, but not by her or her husband; and insisted that no prescription could run during the life of Marion Bruce, the liferentrix, who died only in 1708, not only because the heritor was non valens, but also because the liferentrix, having entered to possess as liferentrix, non potuit mutare causam possessionis, therefore the possession cannot be ascribed to the infeftment of property; and therefore the defender cannot subsume in terms of the act 1617; and quoted the cases, ult. February 1666, Earl of Lauderdale, (Dict No. 379. p. 11,205.) 17th January 1672, Young, (Dict. No. 381. p. 11,207.) and February 1680, Brown against Hepburn, (Dict. No. 382. p. 11,208.) and the liferent was no title of possession of the lands, but only of the house, yards, and coals. 2dly, The brocard non potuit mutare causam possessionis does not hold in the case of the long prescription, 27th November 1677, Grant against Grant, (Dict. No 135. p. 10,876.) 20th February 1675, Earl of Murray against Wemyss, (Dict. No. 16. p. 9036.) Stair, Precription, § 19. This case I reported,—and we unanimously found the prescription instructed, and that the defender excludes the pursuer, and sustained the defence. Arniston and the rest laid their opinion on the liferent being an annuity and not a locality; for Arniston said, that had it been a locality, he thought the possession must have been ascribed to it as the preferable title.