David Williamson, Maltman in Newburgh, v. John Daw, Brewer there
Date: 4 August 1761 Case No. No 34.
Personal objection, which strikes against the granter of a deed, strikes against all pleading in his right.
Click here to view a pdf copy of this documet : PDF Copy
Elizabeth Williamson being infeft in two roods of land, and some houses built thereon, in the burgh of barony of Newburgh, she disponed them to her eldest son, Stephen Brown, who was infeft more burgi upon the 6th February 1722.
Stephen Brown dying without issue, John Brown, his younger bother, was infeft in these subjects, as heir to him, upon the 19th of May 1731. John Brown having likewise died without issue, the succession devolved upon William Petrie, who was cognosced and served heir to him, and infeft more burgi in January 1748.
From William Petrie this small subject was purchased by William Anderson, who built some new houses upon it; and by his son it was disponed to John Daw, who rebuilt the houses, they having been burnt down by accidental fire.
During the greatest part of this possession, Elizabeth Williamson lived in the neighbourhood, without challenging any of the transmissions of these subjects, either to the several heirs or to the onerous purchasers; and seems to have understood herself entirely divested, as she procured a disposition from her son, John Brown, on his death-bed, which was afterwards reduced before the Court of Session: But, soon after her death, David Williamson, maltman in Newburgh, got himself cognosced heir to her, and infeft; and thereupon brought a reduction and improbation of Stephen Brown's right, and of all the subsequent titles.
In this process, John Daw produced Stephen Brown's sasine, but not the disposition to him; and the pursuer having obtained certification contra non producta, he next insisted in the reduction of this sasine, as proceeding either without a warrant, or upon a warrant declared to have been forged.
Pleaded for the defender, 1 mo, Elizabeth Williamson, were she now aliye, after so long possession had under titles derived from herself and her children, and after having witnessed the successive transmissions and repairs of the tenement, would not be allowed to-challenge the rights she herself had acknowledged, but would be barred exceptione doli, and the pursuer, as heir to her, cannot be in a better condition.
2do, The long possession, and other circumstances attending this case, are sufficient to adminiculate the sasine, according to the doctrine laid down by Lord Stair, B. 2 T. 3. § 19. and the decisions there quoted. See Proof.— Instrument of Sasine.
3tio, The rule there laid down by Lord Stair applies a fortiori as to tenements within burghs. In those the maxim, ‘ That a sasine being assertio notarii only, is not good without its warrant,’ does not take place, there being hardly such a thing as a separate warrant for such sasine.
4to, The defender's plea is strongly supported by the solemn decision pronounced in the case between Lord Hope, the Countess of Hopeton, and the Marquis of Annandale. Lord Hope claimed the estate of Annandale, under a gratuitous settlement by Marquis James, and produced a charter of resignation and instrument of sasine; but, as he could not make up the tenor of the warrant of the charter, certification passed against it, and his claim was dismissed. The Countess of Hopeton, however, as creditor to Marquis James, under the same title, was found entitled to claim out of the estate; because, quoad her, it was presumed there had been a disposition, the warrant for the charter, but that it had been abstracted by the apparent heir or his predecessor; and it was found that Marquis George, the heir of Marquis James, could not plead the want of it in prejudice of an onerous creditor. There, the question was as to a great land estate; here, as to a small tenement within burgh, which is in favour of the present case: There, with a creditor; here, with an onerous purchaser, and those deriving right from him, who, in the law, are regarded in the same light with creditors.—See Appendix.
Answered for the pursuer to the first; Supposing it true, that Elizabeth Williamson had lived 30 years, without challenging the right granted to her son, she could not be thereby barred from insisting in an action of reduction and improbation, in order to force production of that right, that it might appear whether it was valid, or under what conditions it was granted; and if in such process the right called for had not been produced, there appears no reason why the usual certification should not have been pronounced.
To the second, 1mo, 40 years have not yet elapsed from the date of the instrument of sasine, and no shorter possession is sufficient to support a sasine without its warrant; 2do, While the decreet of certification stands, the possession must be attributed to a forged deed; and, therefore, though it had been for more than 40 years, it could not have availed the defender, there being no prescription in cases of forgery; 13th February 1615, Lord Drumlanrig contra Wemyss, voce Prescription.
To the third; It is true, that transmissions of rights within burghs are attended with certain peculiarities. Thus, an instrument of sasine, upon a resignation, is equal to a charter and sasine in other cases, so as to be a good title of prescription; and an instrument of sasine, in favour of an heir, is in the same respect equal to an instrument of sasine in other cases, following upon a precept from the Chancery, or upon a precept of clare constat from a subject superior: But that such instrument should, by itself, establish a right of property within the years of prescription, has never -been understood. And Lord Stair has expressly declared, that instruments of sasine, taken upon singular titles, will not be sustained without a proper warrant; B. 2. T. 3. § 19. where two decisions are quoted perfectly apposite to the present case. (The cases alluded to are, 11th February 1681, Irvine voce Proof; and 21st June 1672, Mitchell.—Ibidem.)
To the fourth; The case of the Marquis of Annandale will not apply; for, 1 mo, The question here is with a purchaser, whose business it is to examine his author's rights; there, it was with a creditor trusting to a charter and sasine, where it is not usual to examine the warrants of the debtor's investiture; 2 do, The Marquis of Annandale having long possessed his father's estate, considering him only as apparent heir, his debts became effectual against succeeding heirs.
“The Lords found the pursuer barred personali objectione, as heir of Elizabeth Williamson.”
Act. David Græme.Alt. John Craigie.
Fol. Dic. v. 4. p. 79. Fac. Col. No 58. p. 140.
