Effect of the Apparent Heir's interference, and extent of his Interest in the Estate.
James Knox v. Irvine and Forsyth
Date: 21 November 1759 Case No. No 33.
The son of an heiress possessing in a state of apparency falls under the act 1605, not withstanding his father's having right to the liferent by courtesy.
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By the death of Sarah Irvine, proprietrix of the land of Kirkconnel, her surviving husband William Knox was entitled to the courtesy. Dr Knox the heir-apparent was allowed by his father to possess the bulk of the land, by levying rents and giving tacks in quality of heritable proprietor, assuming that designation in every one of his deeds. Particularly, he set a tack of certain houses and yards in the town of Ecclefechan, to Robert Irvine and Thomas Forsyth, to endure for 1260 years. The Doctor having died in apparency, his sister Janet Knok the next heir, was infeft upon a precept of clare constat from the superior. She brought a reduction of the tack as granted a non habente potestatem, insisting, that she was not bound by her brother's deeds, though he was more than three years in possession; because he was excluded by the courtesy, and therefore could not possess as heir-apparent, but only in the father's right. It was answered, That the courtesy cannot take place unless it be claimed; and that it was not claimed is evident from the following circumstance, that the son possessed as heritable proprietor; and that this possession must subject Janet the next heir to his onerous deeds, unless Janet will bring evidence that the son's title of possession was derived from his father claiming the courtesy. The Court repelled the defence upon the courtesy; found, ‘ that Dr Knox possessed as heir-apparent; and, therefore, assoilzied from the reduction.’
Fol. Dic. v. 3. p. 258. Sel. Dec. No 157. p. 217.*** This case is reported in the Faculty Collection:
June 27. 1760.—Sarah Irvine stood infeft as proprietor of the lands of Kirkconnel. She was married to William Knox, and had children by him. Upon her death, in 1740, her eldest son, Dr William Knox, succeeded to the estate; but never made up his titles. He survived his mother for several years, and died while his father was yet alive. The succession then opened to Janet, the Doctor's sister.
Dr Knox, after his mother's death, intromitted with part of the rents of the estate; for which he granted receipts. He also granted five tacks under the character of ‘ heritable proprietor of the lands.’ Some of those tacks were of a long endurance; and particularly he granted one to Robert Irvine and Thomas Forsyth, and their heirs, of a house and yard in the village of Ecclefechan, and five acres of the commonty of Hoddam, (then under division), for 1260 years. The tack acknowledged the receipt of a grassum of L. 20 Sterling; and bore also an obligation for payment of a tack-duty of 5s. Sterling yearly.
The tenants entered to possession upon those tacks; but the division of the commonty of Hoddam not being completed till after Dr Knox's death, Irvine and Forsyth brought a process against Knox, his sister, the next heir to the estate, for having her decerned to implement that part of the tack respecting the five acres of that commonty.
Janet Knox pleaded in defence, That Dr Knox, the granter of the tack, had made up no title as heir to his mother in the lands; and therefore that it was not binding upon her; and separatim objected to the extraordinary length of its endurance; but did not much insist on this point. Upon these grounds she also repeated a reduction of the tack.
The pursuers answered, That the Doctor had possessed the lands, as apparent heir to his mother, for much more than three years, as appeared from the tacks, and discharges of rent, granted by him; and therefore the defender, the next heir passing by, was liable for his onerous debts and deeds, in pursuance of the act 1695; and that the onerosity of this tack would be sufficiently instructed.
The defender replied, 1mo, Dr Knox had no total possession of the estate; neither did he possess any particular part of it as apparent heir; but only granted some partial receipts for rents, not amounting all together to a full year's rent. This he did by tolerance from his father, who had a preferable arid exclusive right to possess the estate by the courtesy, as having been husband to the heiress, and had children by her. 2do, The tacks were granted without his father's permission; and as he was designed in them younger of Kirkconnel, the tacksmen must have known his father's preferable right; which must likewise be presumed, as, the courtesy is a public, and not a private, title of possession. 3tio, The act 1695 being a correctory law, cannot be extended beyond its precise words and sanction. The possession intended, and spoken of, in the statute, is only the possession of an apparent heir entitled to possess under that character. The possession of a son whose father has a liferent, by which he the father has a preferable title to possess, is not such as is intended by the statute, as it can only be constructed to have flowed from the father's tolerance; and must be considered as properly his possession, since, without his consent, the son could not have access to possess. This construction of the statute is supported by the decision 24th July 1752, Pitcairn contra Lundin, voce Passive Title.
Pleaded for the pursuers, 1mo, The father never was in possession of more than the half of the mains, being but a small part of the estate; and Dr Knox appears to have possessed the whole lands set in tenantry, from his mother's death, in 1740, till his own death, in 1748, though the whole receipts granted by him have not been recovered. He had no other title than his apparency; nor does any mandate or commission from his father to him appear, or evidence that it was in virtue of a tolerance from him that the Doctor possessed. 2do, The title his assumed of heritable proprietor, though not strictly proper, because he was not infeft, yet being the title under which apparent heirs commonly act, proves, that he ascribed his possession to that title. Though the courtesy is a part of the common law; yet the actual title which a husband may thereby have is facti, and can only appear by his possession, seeing the extent of it depends on the wife's infeftment; it is often restricted by the marriage-articles, and creditors are not obliged to know these particulars. Here creditors and tenants who contracted with Dr Knox, could not ascribe his possession to a title derived from his father, of which they had no knowledge, epecially when they saw the apparent heir for so many years ascribing his possession to his own heritable title only. And, 3tio, The act 1695 is correctory; but this case falls under both the intent and words of it. The fair construction of the statute is, that where an apparent heir possesses his predecessor's estate for more than three years, his onerous debts and deeds are effectual against the succeeding heir, unlees it is proved, that the apparent heir did not possess under his heritable title, but under a singular title derived from some other person, preferable to and exclusive of his apparency, and to which separate title he openly ascribed his possession. There is no difference between the courtesy and any other right competent to exclude the apparency; and a third party having such right, but lying by, can never be said to exclude the apparent heir from possessing properly as such, merely because if that third party had used his right, the heir would not have had access to possess. Neither can an apparent heir's acquiring any singular title, keep him from falling under the act 1695, when that title is latent; far less when he expressly ascribes his possession to his heritable title.—The case of Pitcairn does not apply; for there Lundin, who contracted the debt, not only possessed under a singular title, but truly was not in potestate to possess as apparent heir to his mother, because no such title was known to belong to him at the time.
The Court gave different interlocutors in this case; which seemed to be attended with difficulty.—— It was observed on the Bench, That here the apparent heir did in fact possess; and that third parties were in bona fide to contract with him, as supposing him to possess under that character.
‘The Lords repelled the defence on the courtesy; and found, that William Knox possessed three years as apparent heir; and also found, that the tack, notwithstanding of its endurance, is good against Janet Knox, the heir passing by.’ See Tack.
Act. Miller, Advocatue.Alt. Montgomery, Hew Dalrymple.Clerk, Kirkpatrick.
Eac. Col. No 224. p. 413.
