Subject_1 GROUNDS and WARRANTS. Subject_2 SECT. I.
Whether necessary to produce Grounds and Warrants after a long interval of time.
John Chalmers v. Margaret Oliphant
Date: 5 March 1766 Case No. No 13.
Necessary to produce the grounds of debt, though there had been possession upon an adjudication for more than forty years.
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Alexander Black, having bought a quantity of grain from Durham of Largo, Largo, in 1701, adjudged for the price a tenement in the Potter-row, belonging to Black. No charter or infeftment followed; but possession was taken in 1713, and continued till the commencement of this action beyond 40 years.
Jean Black, grand child of Alexander, having granted a trust-bond to John Chalmers, he raised a summons of adjudication. Compearance was made for Margaret Oliphant, who had acquired right to Largo's adjudication, and, with the decreet, was produced the contract for the corn, but no receipts to prove the delivery.
The pursuer objected, That the adjudication was null, as there was no evidence of the debt.
Answered, Had no possesion followed, the objection would have been good; for then the adjudication could be considered as a step of diligence only; but, when possession has followed upon it for more than 40 years, it falls to be regarded as a title-deed, and all challenge is cut off by the negative prescription.
Replied, A right to heritage cannot be lost by the negative; it must be acquired by the positive prescription; and there is no place for that without charter and infeftment. A decreet of adjudication is no more than a legal conveyance in security of the debt; and therefore must be supported by production of the grounds of debt, though possession has been had upon it for ever so long a time.
‘The Lords found it was incumbent on Oliphant to produce the grounds of her adjudication.’
Act. Wight.Alt. Swinton, jun.Clerk, Home.
Fol. Dic. v. 3. p. 254. Fac. Col. No 34. p. 58.*** Lord Kames reports the same case:
An adjudication was led anno 1701, of a tenement in Edinburgh for the sum of L. 2529, upon which possession following, was continued above 40 years. The possessor considering himself to be proprietor by the expired legal of his adjudication, upon which he could take infeftment at any time, did in the year 1731, rebuild and enlarge the tenement, so as greatly to encrease the value. The heir of the subject, upon the title of a trust-adjudication, brought a reduction of the adjudication upon the following medium, that the grounds of the adjudication were not produced. The grounds were a contract of victual by which Durham of Largo became bound to deliver to Alexander Black 300 and odd bolls bear at a certain price, with three receipts by Black, acknowledging the receipt of the victual. The adjudication bears production of every one of these documents; but the three receipts were amissing when the reduction was insisted on, and could not be produced. It was found by the Lord Ordinary, that in respect the grounds are not produced, the adjudication is not a title of prescription. In a reclaiming petition, it was chiefly insisted on, that post tantum temporis there is sufficient evidence of the debt to support the adjudication. It occurred to me at advising, that an adjudication, however old, is not a good title for a process without its grounds; but that where possession has followed upon the adjudication, and a reduction intented of it, it is not necessary to produce the grounds after 40 years as was found, Kennoway contra Crawford, No 9. p. 5170. The reason is, That the adjudication being rite led requires a reduction; and that this reduction must be brought within 40 years, to save it from the negative prescription; which, in other words, is saying that the defender in possession by the adjudication, is not bound to produce his grounds to the pursuer, who is cut off by the negative prescription, and has no title to insist in a reduction. But the Court unprepared for this defence, which was not stated in the reclaiming petition, found that the defender must produce the grounds of his adjudication.
