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What Title requisite in the Positive Prescription.
Subject_3 SECT. I.
Title requisite to Purchasers of Land, and to Adjudgers.
John Johnston v. James Balfour
Date: 7 June 1745 Case No. No 84.
Forty years possession since the date of a charter and sasine, bearing to have proceeded or an apprising, which was not produced, was sustained to exclude a reducer, tho' it was alleged the possession was older than the date of the charter, and had begun upon the obtainers thereof being entitled to a liferent annuity, which exhausted the rents, the rather as a tack was produced, let by the life-renter, and it was pleaded, the possession could not be imputed to the apprising which was not produced.
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John Johnston, as adjudger from the apparent heirs of Patrick Stewart of Beath, brought a reduction of the rights of James Balfour present possessor thereof, who, to exclude the pursuer's title, produced a charter, 24th February of the lands in favour of James Balfour and Marion Bruce, his grandfather and grandmother, and sasine thereon, 19th January 1699, bearing to proceed on an apprising led by them, 29th July 1664; and on these titles alleged possession for more than 40 years.
A proof of the possession being led, it was fully made out, and appeared to have commenced before the date of the charter.
Pleaded for the adjudger, That Patrick Stewart dying in the year 1654, Marion Bruce his widow had married to James Balfour, and they had taken possesion of the estate under colour of her provisions, which were a liferent of the house and gardens, and of the coal, and an annuity of L. 1000 out of the lands; and she had a direct title to possess the house and coal; and with regard to the rest of the estate, though an annuity is no title to demand possession, yet possession may be had upon an annualrent, and tenants may pay an annualrenter without a poinding, who has also action against intromitters with the rents; and it is ordinary in a competition to prefer an annualrenter to the mails and duties, when they do not exceed the annualrent, as they did not here. As she is found therefore in possession, it cannot be doubted she entered in virtue of her liferent; besides there is produced a tack anno 1670, granted by her as liferentrix of the lands.
The apprising said to be led anno 1664, cannot be founded on as giving a title to possess, since it is not produced, and thus the original of her possession being once determined, she could not change the cause thereof and ascribe it to the charter.
As there is no positive prescription from the possession's not being on a proper title, so the heirs are not excluded by the negative prescription, because the possession of the liferentrix was the fiar's posseseion, and so no prescription run against them.
Pleaded for the defender, That the law does not enquire into the beginning of a 40 years possession, but sustains a title and possession, though in this case the beginning of it has been on the apprising, and the tack mentioned is subsequent to this, and is granted by her husband and her; and nothing can be inferred from her being therein designed liferentrix by the writer, as the liferent was not a title to set tacks; the possession must therefore be applied to the title of property, as the annuity was no title of possession.
Decisions cited for the pursuer, 27th February 1666, Lauderdale against Oxford, infra, h. t., 25th January 1678, Lauderdale against Tweeddale, infra, h. t. infra, h. t. 17th January 1672, Young against Thomson, infra, h. t. 5th February 1680, Brown against Hepburn, infra, h. t.
For the defender, 27th November 1677, Grant against Grant, infra, h, t. one in 1726 or 27, Smith of Inveramsay against Seton, and that in the case of Mackerston, (See Appendix), 20th February 1675, Countess of Murray against Wemyss, No 15. p. 9636.
It seemed to weigh with the Lords, that the jointure was not a locality but an annuity; however they did not distinguish the house and coal from the res of the estate.
“The Lords having advised the probation adduced, and writs produced for the defender, found it proved, that he and his predecessors and authors had been in the uninturrupted possession of the lands libelled, upwards of 40 years, by virtue of the infeftments produced; and thereupon found that the defender had produced sufficient to exclude the pursuer, and sustained the defence proponed for the defender.”
Reporter, Lord Elchies.Act. R. Craigie.Alt. Ferguson.Clerk, Gibson.
Fol. Dic. v. 4. p. 95. D. Falconer, v. 1. p. 94.
