Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Mary Dickson
v.
Millars

Date: 7 February 1766

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[Kaimes, No. 239; Fac. Coll., IV. p. 367.]

This case was before the Court, 7th August 1765, and this day the Lords unanimously altered the judgment then given. Lord Pitfour said that the prescription in favour of heirs among themselves was of very great consequence, as well as prescription with respect to purchasers and creditors: that the benefit of the statute was general, and extended to the one as well as the other; that, if it were otherwise, the consequences would be terrible, for, supposing an heir is ill advised in making up his titles, which often happens, he and his successors, for hundreds of years, would be in a state of apparency, and all their marriage-settlements devising their estates to certain heirs would be good for nothing, The same, he said, would have been the case with respect to creditors and purchasers, if it had not been for the Act 1695, which ought not to be considered in a case that is to be decided upon the principles of common law. He further said that a non valentia agere did not at all apply to the positive prescription, from which nothing was to be deduced but minority, mentioned in the Act. Lord Coalston said that, notwithstanding the Act 1695, creditors would not be safe if this decision were to stand. This his Lordship did not explain, but I take his meaning to have been that the creditors of George Muirhead in this case would not have the benefit of the Act 24th, 1661, by which the creditors of the defunct are preferred to the creditors of the heir, provided they do diligence within three years, and by which the apparent heir is forbid to alienate the estate within a year of the death of his predecessor; and in this sense I think his Lordship was in the right, as I never understood that the creditors of the intermediate heir, whose debts are made effectual by the Act 1695 had the benefit of the Act 1661, as it would be most unreasonable to give the creditors of one apparent heir such an advantage over the creditors of another apparent heir, and even the creditors of a succeeding heir entered. His Lordship further said, that the case of Gray against Smith did not apply to this case; because, there, the person who was said to have prescribed had two titles in his person, one an infeftment as heir of line to his predecessor, the other a disposition to him and his heirs-male, and there was no reason for setting up the one title to destroy the other; and accordingly it has been often found that when a man purchases in an adjudication, or any other collateral right, to secure his property, his possessing upon any other title does not operate a prescription of those rights. But I go so far as to say that the decision in the case of Gray was wrong, and that, in a question betwixt heirs, whatever a man chooses to make his title of possession will be likewise a title of prescription; as in that case, the heir having rejected the disposition and made up his titles upon the old investiture, the disposition was thereby lost by prescription in a question with heirs, though, if it could have secured the estate against any claim which might be made upon it, it would be still effectual. And if a man, in such a case, can prescribe, in favour of himself, an immunity from fetters imposed upon him by one of the titles, I do not see why he may not likewise prescribe in favour of his heirs of line,—it being supposed to be every man's interest to have an estate in fee-simple rather than in a fee-tail.