Scottish Court of Session Decisions

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

Campbell of Otter
v.
Wilson

Date: 6 August 1766

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This case I have mentioned before, 26th June 1766. To-day a pretty general point occurred concerning the doctrine of prescription:—I get a disposition of lands a non domino, which I make a title of prescription: in the assignation to the maills and duties, a liferent of a part of the lands is excepted, and it is declared that the disposition is with the reservation of this liferent: now this liferent proceeded a vero domino; afterwards I make a bargain with the liferenter, and possess the lands upon an assignation from her. The question is, Whether this possession can be imputed into the years of prescription?

Lord Coalston maintained that, when a man had two titles in his person, as in this case, the disposition to the property and his assignation to the liferent, he might ascribe his possession to either; and he said it was the same case as if the prescriber here had acquired a wadset right, or any other incumbrance proceeding a vero domino.

On the other hand, Pitfour and Kaimes maintained that nemo mutare potest causam suæ possessionis, at least not in a question with a verus dominus, from whom the title of possession proceeded; and they said it was the same thing as if the prescriber had taken a tack from the liferenter, the possession upon which tack he could not ascribe to another title, in prejudice either of the liferenter, or the verus dominus from whom she derived her right. But the President put his opinion upon the specialty of the exception of the liferent right in the disposition; and it carried, dissent. tantum Coalston, That the years of the liferent were to be deduced.

N.B. The general principle maintained by Pitfour and Kaimes, I think, is wrong, nor will the maxim of nemo mutare potest, &c. apply to such a case as this; for it only applies to the case where I acquire a new title, and would set it up against the person with whom I have contracted, and from whom I derive my right to possess; as, for example, if the prescriber in this case had acquired any other title to the lands, and had set that up against the liferenter, from whom he had taken the assignation, or, as if a man took a tack of lands from me, and then acquired a right from any other body, and upon that pretence refused to pay the rent. But this will not apply to the verus dominus, with whom the prescriber never contracted or agreed; and, therefore, whatever way he got the possession, suppose even upon a tack from the liferenter, he might set up that possession against the dominus. 1 think therefore the decision, if it be well founded, must rest upon the specialty of the exception; and it must be maintained, that by the disposition the disponee had no title to possess the liferent lands, and therefore the possession of these lands, during her life, was without a title from the disposition, like a man upon a bounded charter possessing any thing beyond the bounds. In short, it must be maintained that the liferented lands were not disponed, at least while the liferenter lived. See infra, 19th February 1767.