Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION III.

What Title requisite in the Positive Prescription.
Subject_3 SECT. XIII.

What kind of possession requisite. - Connection of possession.

George Middleton of Lethemdolles and David Paterson of Bannockburn
v.
John Earl of Dunmore

Date: 22 December 1774
Case No. No 171.

Possession for forty years, founded on a disposition from the superior who had attained possession in virtue of the clan act, found sufficient to establish a prescriptive right.

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The lands of Lethem and Lethemdolles were vested by infeftment in the person of Robert Rollo of Powhouse, in the year 1699, holden by him of Hugh Wallace of Ingleston, the superior; and which he continued to possess by that tenure, till, having been concerned in the reballion 1715, he and his son James were both tried and convicted of high treason, whereby his estate became forfeited.

Hugh Wallace the superior meaning to take the benefit of the clan act, upon the 30th May 1717, granted a precept for infefting himself in the lands of Lethem, and he was infeft accordingly 3d June said year.

Mr Wallace entered a claim to the lands of Lethem before the Commissioners of Enquiry; but no procedure thereupon appears, nor does it appear that he took any step as to the lands of Lethemdolles.

Mr Graham of Airth acquired the foresaid lands of Lethem and Lethemdolles from Mr Hugh Wallace the superior; and having been thereupon infeft in 1720, upon a charter from the Duchess of Hamilton, Hugh Wallace's immediate superior, he, with consent of Hugh Wallace, granted a feu-charter of the whole to Robert Rollo, Sheriff-clerk of Clackmannan, as trustee for the three daughters of the foresaid Robert Rollo, the forfeiting person.

James Rollo, son of the said Robert Rollo, was rehabilitated by acts of Parliament, whereupon the daughters, with the consent of their trustee, in 1739 granted a conveyance of the lands to the said James Rollo, and assigned him to the charter and precept granted by Mr Graham in 1720, upon which no infeftment had hitherto followed.

In February 1750, David Rollo, son of James, established a title to the foresaid right, which stood in the person of his-father, by a service as heir in general to him; and having sold the whole lands to Dr James Dundas, he, upon the 24th May 1750, executed a disposition in favours of Dr Dundas, bearing an assignment to the writs and evidents of the lands, and, in particular, to the charter 1720.

Dr Dundas, in virtue of the precept in that charter, was infeft upon the 16th January 1750; and the pursuer George Middleton was served heir in general to Dr Dundas his uncle, and obtained from William Graham of Airth, the superior, a precept of clare constat, of date 4th February, and in virtue thereof was infeft upon the 5th February 1759.

Upon these titles George Middleton sold the lands to the Earl of Dunmore, by minute of sale; and the Earl having objected to the validity of the progress, an action was brought at the instance of Mr Middleton and David Paterson (formerly Rollo) his author in these lands, concluding to have it found and declared, that the pursuer had an unexceptionable right to the lands, and, inconsequence, that the defender should be decreed to pay the price; or otherwise, that the sale should be dissolved. The Officers of State, for the interest of the Crown, were called as defenders in the action. No appearance, however, was made on behalf of the Crown: But appearance having been made for the Earl, parties were heard upon the exceptions taken to the progress.

It was maintained, on behalf of the pursuer, That he had a good right to the lands, in respect that he derived the same by a regular progress from the superior, who had a good right thereto, in virtue of the clan act; and 2do, he maintained, That supposing the superior's right under the clan act had been originally defective, in respect of the directions therein prescribed not having been complied with, (which the defenders contended) that the right is now secured by the positive prescription against any challenge, either at the instance of the Grown or any other person whatever, in consequence of the possession which the pursuers and their ancestors and authors have enjoyed, without any interruption, for the space of 54 years upon a habile title of prescription.

This being the case, there is no room now for an enquiry how or in what manner the possession was first attained. If they have had 40 years peaceable possession as proprietors, and if they can produce a charter and sasine prior to that possession, they sufficiently comply with the requisites of the statute 1617. At the same time, the fact was, that Mr Graham attained possession in virtue of the clan act; for that it does appear, 1mo, That a factory was granted by Mr Graham of Airth to Robert Rollo, the Sheriff-clerk, upon the 29th September 1719, which proceeds on a recital of Mr Graham's being superior and heritable proprietor of these lands, and that he had acquired the property by the clan act; and authorising Robert Rollo to uplift the rents for crops and years 1717, 1718, and all precedings, and also for the then current year, and in time coming, during the granter's pleasure; and the factor is taken bound to account to Mr Graham for his intromissions.

2do, It appears that Robert Rollo entered on the office in consequence of this factory, from a stated accompt in process between him and John Callander, a tenant in Lethemdolles, in which the rents of these lands, for crops 1715, 1716, 1717, and 1718, are specially charged, and a mutual discharge subjoined, subscribed by Rollo the factor and Callendar the tenant, dated Airth, 1st January 1720; and it is instructed, from the charter by Mr Graham, that the year following he conveyed the lands to Robert Rollo, for behoof of the daughters of the forfeiting person, to be held by him of Mr Graham, the disponee. And the lands have been uniformly possessed by Robert Rollo, and those in his right, from that time to the present, without any challenge or interruption from any mortal whatever.

Nor can it make any difference, that the title of Mr Graham's disponee remained personal down to the 1750: It is sufficient that the lands were possessed for 40 years by persons who can connect with the charter and sasine which is founded upon and produced as the title of prescription; and it is of no moment whether that connection be established by deeds clothed with infeftment, or by deeds merely personal, or even by simple apparency. These propositions the pursuers hold to be clearly founded in the statute 1617: And they hold it to be equally clear, that, after 40 years possession of the dominium utile, it is no good objection that no more was vested in Mr Graham, by the infeftment in his person, than the right of superiority.

Prescription is only necessary to supply the want of right in the granter of a deed, and to remove any burdens or objections to which the right might have been otherwise liable; but as the right of the superior is a right to the lands ex facie simple and absolute, as a grant of superiority is truly a grant of the lands themselves, and as the right of the vassal is no more than a burden upon the dominium directum, so when the superior, in virtue of his infeftment of the lands, has had the full possession of the dominium utile for the space of 40 years, without any challenge or interruption, the vassal's right is thereby totally at an end, and the superior's right is effectually disburdened of it; his possession of the dominium utile for the space of 40 years is as effectual for extinguishing the right of the vassal, as a resignation made by the vassal ad perpetuam remanentiam.

The Court gave judgment, “finding the progress sufficient.”

Act. Macqueen. Alt. D. of Faculty. Clerk, Campbell. Fol. Dic. v. 4. 95. Fac. Col. No 146. p. 380.