Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 PRESCRIPTION.

Scott of Scalloway
v.
Bruce Stewart

1776. December.

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The decision, January 1727, Elliot of Arkleton against Maxwell of Nithsdale, observed by Lord Kaimes, that a recorded reversion could not be cut off by 40 years' possession on absolute titles, is not approved of. It occurred in a case reported by Lord Braxfield, as Lord Probationer, December 1776, Scott of Scalloway against Bruce Stewart of Symbister. In this case, it was held that possession for 40 years, on absolute titles, will work off every fetter or reversion whatsoever. If an heir, whose predecessor's right was redeemable in virtue of a reversion, either registered or engrossed in the body of his infeftment, makes up titles as absolute proprietor, leaving out the right of reversion, he will be rendered secure against all challenge by the positive prescription. And, in the case of tailyies, an heir whose predecessor was fettered by the strictest tailyie, may get quit of it by making up his titles in fee-simple, leaving out the tailyie, and possessing them for 40 years. This was the doctrine held by the Judges to be law, in deciding this case, Scott against Stewart, and so reported by Lord Probationer. It occurred in a reduction, and in a question of a production to exclude; and, had there been no other objection, the Lords would have found it sufficient to exclude; but, there being an objection to the sasine on which the prescription was founded, (which see sasine, p.,) they pronounced this interlocutor:- "Find that the defender has not yet produced sufficient to exclude; and, therefore, that a day falls tobe assigned to him to satisfy the production; but reserve to him, at discussing the reasons of reduction, to found upon his titles now produced, and, to the pursuer, his objections against the same, as accords, and remit.