What Title requisite in the Positive Prescription.
Subject_3 SECT. XIV.
Prescription against Latent Entails.
William Douglas v. Mrs Isobel Douglas of Kirkness
Date: 2 February 1753 Case No. No 173.
Possession for 40 years, upon a title of absolute property, frees the possessor from all limitations and irritancies imposed by his predecessor.
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A land estate in possession of the heir of line, was claimed by the heir-male, upon this medium, that the former investitures were in favours of the heirs-male, with limitation sufficient to debar a gratuitous alteration. It was answered, 1mo, That there was no limitation which could bar a gratuitous alteration; 2do, That the alteration was made above 40 years ago; during which time the investitures had stood in favours of the heirs of line. Replied, That, till lately, the same heirs who possessed the estate were heirs-male as well as heirs of line; and that the pursuer needed no action for supporting the right of the heirs-male till the succession divided, and the heir-male come to be different from the heir of line; et contra non valentem agere non currit præscriptio. Duplied, An action of declarator was always competent concluding against the heir in possession that he should be bound to make up his titles, and possess in his quality of heir-male: But, without regard to this, that it would be intolerable to keep up such old pretensions, without end, never to be sopited by prescription; for, at that rate, no man could be secure of land-property.
“The Lords were unanimous as to the defence of prescription; and that possession for 40 years of a predecessor's estate must free the heirs of all limitations and fetters.”
Fol. Dic. v. 4. p. 97. Sel. Dec. No 37. p. 41.
Affirmed upon appeal.
*** See this case as reported in Faculty Collection, No 38. p. 4350. voce Fiar, Absolute Limited.
