Charter and sasine, with 51 ysars' possession, when the original light was defective, not found a sufficient progress.
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A tenement in Peebles being exposed to roup in the year 1747; by James Little, Thomas Dickson became purchaser, who, in a process brought against him by Adam Little, to whom the price was payable by the articles of roup, alleged the progress to be insufficient.
The progress was a decree of adjudication in the year 1694, taken in absence, against a minor, with a charter and sasine thereon, by the burgh of Peebles in 1696, recorded in the books of the burgh, and ever since clothed with possession. The adjudication without the grounds was nothing; but the charter and sasine, with 51 years possession, were, by the Ordinary, sustained to be a sufficient progress.
The defender having reclaimed, the Lords “found the progress not sufficient, and therefore found him not bound to the bargain.”
Here the original right, the adjudication, was altogether defective; and supposing the charter and sasine to be formal, and the possession continued for 40 years after expiry of the legal, (within which time payment within the legal is competent) and after the majority of the debtor; yet as prescription is at best but exceptio temporis, liable to other interruptions, it doth not amount to a right which the purchaser is entitled to have given him; see June 13. 1676, Nairn contra Scrimsour, No 11. p. 14169.
Another exception was made to the progress, that the tenement appeared not to hold burgage, but feu of the burgh, and the sasine was therefore improperly recorded in the register of the burgh, instead of the register of sasines for the shire; but upon which the less weight could be laid, that the whole tenements in Peebles were said to bear in the reddendo, besides the burgage service, a small payment in money to the burgh, just as this does, and to be all recorded in the same manner. But as the defender prevailed upon the general ground, no inquiry into this was thought necessary.
