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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Sinclair v Brown [1835] CA 13_594 (3 March 1835)
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Cite as: [1835] CA 13_594
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SCOTTISH_Shaw_Court_of_Session
Page: 594↓
v.
Subject_Title to pursue—Minor—Prescription—Decree in foro—Process.—
1. A decree of reduction of a heritable right being taken in 1786, and followed by a decree of reduction-improbation in 1788, and both being led in absence against an undefended pupil—held that it was competent to open them up within the long prescription, and that minority was to be deducted in computing the prescription.—2. Although heritable titles were made up in 1788, in reliance on the decree, and possession followed ever since, and repeated sales of the lands were effected, and jibe pupil's representatives were for twenty years of full age, before bringing their challenges,—held that they were not barred, as they had taken no share in the transactions affecting the lands.—3. Held that a decree of reduction-improbation was in absence, although the production bad been satisfied; in respect that no defences were lodged, no discussion took place, and no farther compearance was made.—4. Question, Whether a decree of reduction-improbation regularly obtained, in absence, against a person of full age, is liable to be opened up?
In 1775, Henry Hay, heritable proprietor of the lands of Auchenfstarry, disponed them, ex facie as for a price paid, to his brother-in-law, Henry Sinclair, portioner in Auchenstarry. Sinclair was infeft in the same year, and died in the year following, leaving his widow pregnant with a son, who was born in March 1777, and was named Henry. In 1785, Thomas Baird, a creditor of Henry Hay, raised a process of adjudication of the lands against Hay, then abroad. He did not make the pupil, Henry Sinclair, a party, and he obtained decree in absence in August 1785. Founding on his adjudication, he afterwards, in 1786, raised a reduction, directed, against the pupil, as “eldest son and heir served and retoured to the deceased Henry Sinclair, wright in Auchenstarry,
Baird then conveyed his debt, on which adjudication was led, and his decree of reduction, to William, the son of Henry Hay, now deceased. William served himself heir to his father, and in 1786 raised a reduction improbation of the disposition in 1775 by his father to the deceased Henry Sinclair, and of the sasine following thereon; and of a disposition or other deed by Henry Hay to his sister Margaret Hay, or to Henry Sinclair, her husband, or to David Auchinvole, her second husband; as well as a conveyance of moveables in which she had an interest. The summons was directed against the pupil Henry, as “eldest son and heir, served and retoured to the deceased Henry Sinclair of Auchenstarry, or as representing him upon one or other of the passive titles known in law, and the tutors and curators of the said Henry Sinclair, if he any has, for their interest, Margaret Hay, relict of the said Henry Sinclair, now spouse of David Auchinvole, wright in Auchenstarry, and the said David Auchinvole for his interest;7rdquo; and subsumed, 1st, that the writs were false and forged; and 2d, that the disposition of 1775 was granted in trust to Sinclair, a conjunct and confident person, and without onerous cause, to defeat the diligence of Hay's creditors. A decree was obtained in 1788, an extract of which set forth that the execution of citation bore—“the said Henry Sinclair, Margaret Hay, and David Auchinvole, all personally apprehended, and the tutors and curators of the said Henry Sinclair, if he any had, for their interests, at the Market-Cross of Dumbarton, head borough of the Sheriffdom of Dumbarton, within which shire the said Henry Sinclair lives and resides.” It also stated, that the Lord Advocate appeared for the King's interest, that the private pursuer appeared by counsel, and that the defenders also appeared by counsel; that “the summons was tabled and called in the Outer House in common form, upon the fifteenth day of December, seventeen hundred and eighty-seven, and no compearance being then made for the defenders, was appointed to be enrolled in the
William Hay got himself infeft under a precept of clare constat, in April 1788, and sold the lands to Cowburgh, who was infeft in the same month. The lands were resold in 1803, and again in 1820; and the last purchaser, Campbell, conveyed them to Brown and others his trustees. These trustees entered into missives of sale with Murray. Since the decrees, “William Hay and his singular successors had enjoyed uninterrupted possession; but parties were at issue how far possession had previously been enjoyed by the pupil son of Sinclair, or by his mother, and father-in-law, for his behoof.
Henry, the posthumous son of Sinclair died in 1807, at the age of thirty years. He left three daughters, the pursuers, Mrs Elizabeth Sinclair or M‘Donald and others, the eldest of whom had attained majority about twelve years, when they were served heirs-portioners to their father and grandfather. They then brought a reduction, against Campbell's trustees, of their right to Auchenstarry, derived by them, as above-mentioned, from the singular successors of William Hay.
The defenders produced the decree of reduction in 1786, and the decree of reduction in 1788, as a title to exclude; and a record was made up relative to this preliminary question.
Pleaded by the pursuers—
1. Both decrees were in absence, there having been no defences
2. The decrees were obtained against a pupil undefended, whose heritage they carried off. His mother and father-in-law were called for their interest, and in reference to separate deeds in their favour, but not as administrators for the pupil, who never had any tutors or curators. No tutor ad litem was appointed. The decrees were therefore altogether null; 4 and though there was an edictal citation of his tutors, “if he any had,” that was unavailing, there being no tutors. * At all events, such decree was liable to be opened up. 5
3. The decree 1788 was not properly one of reduction-improbation, as the Lord Advocate's appearance dropped out of the cause at moving for a remit to discuss the reasons; and as the two reasons of reduction libelled, viz. forgery, and the trust-nature of the right, were inconsistent, it was evident that the private pursuer, proceeding alone to take decree, had abandoned the first, and insisted in the other only. This was the more apparent as the production had been satisfied, and yet the pursuer never called on the defenders to abide by it as genuine, which would have been the course, if the reason of forgery had been still insisted in. 6 But even if it were a proper decree of reduction-improbation, it was liable to be opened up, if obtained in absence. 7
4. Though the pupil defender in these actions was dead before the pre-
_________________ Footnote _________________
1 4 Ersk. 1. 69; 4 Bankt. 36. 6. and 14; Chirurgeons of Glasgow, Dec. 17, 1701 (12193); Smith's representatives, Dec. 14, 1711 (12194); 4 Ersk. 3. 68. Note (Ivory) 113; 4 Stair, 32. 7.
2 Sutherland's Trustees, Feb. 4, 1790 (12200); Fraser, Feb. 1728 (12194); M‘Donald, Feb. 4, 1790 (12199); Nicholson, Nov. 23, 1810, F. C.
3 1617, c. 12; Mackenzie on Stat. p. 67.
4 1 Ersk. 7. 13. 34. and 38; Bruce, Jan. 24, 1577; 1 Fol. Dict. 579; Ker, Feb. 25, 1613 (8968); Lockhart, July 25, 1626 (8958); Baron, July 20, 1626, 1 Fol. Dict. 586; Fleming July 17, 1661, ibid; Aitken, Jan. 8, 1628 (9907 and 8908); Jack, 1743 (9003); Bannatyne, Dec. 14, 1814, F. C.; M‘Turk, Feb. 7, 1815, F. C.; Agnew, July 31, 1822, 1 Sh. Appeals, 333.
* It was alleged by the pursuers, that he had been served and retoured to his father by the pursuer of the reduction, 1786.
5 Sinclairs, Jan. 15, 1828, (ante, VI. 336).
6 4 Ersk. 1. 24. and 8. 5. and 4. 69; Henderson, June 20, 1672 (6755); Grant, June 10, 1675 (6756); Dunbar, Dec. 20, 1662, Fol. Dict. 450; E. of Lauderdale, Dec. 5, 1667, 1 Fol. Dict. 451.
7 Earl of Roxburgh, Feb. 1688, 2 Bro. Supp. 116; Ballantine, Dec. 4 and 19, 1695, 4 Bro. Supp. 287.
sent reduction was raised, yet that did not bar the right of challenge. The pursuer in the former actions might have put any proof on record, which he thought fit, before taking decree, and if he omitted this, sibi imputet. 1 The reference to the oath of party, under certification of being held as confessed, was the only proof which he could not so preserve, and that was because he brought an action against a pupil to whom a reference was not competent. 2
5. The sales of the lands by Hay, and the several singular successors deriving right from him, did not affect the pursuer's right of challenge of the decrees, as they were no parties to these transactions. As to the pursuers, all such proceedings were res inter alios.
Pleaded by the defenders—
1. Neither of the decrees was in absence. In Baird's reduction in 1786, appearance was made for the defenders, and the summons was taken out to see. In Hay's reduction-improbation, the production was satisfied, after which period, the decree was necessarily a decree in foro. 3 But even though in absence, the privilege of opening them up did not exist for 40 years, but must be exercised tempestivé, otherwise it might be made an instrument of much injustice to the opposite party. And if 40 years were allowed, minority ought not to be deducted, as it was the prescription of a personal right or jus actionis which was in question; and it was not the act 1617, but the acts 1469, c. 29, and 1474, c. 55, which regulated the right. 4
2. The pupil was duly cited along with his mother and father-in-law, and there was an edictal citation of tutors. In the reduction-improbation, the citation was personally given to the pupil, his mother, and father-in-law. The proceedings, therefore, were regularly held; the decree obtained was not null and void, and had now, from the lapse of time, and possession following on it, become unchallangeable. *
3. The decree of 1788 was properly one of reduction-improbation, and by its express terms, it improved and reduced the writs struck at. It was unnecessary, and would have been irregular, to call on the defenders specially to abide by the deed produced, as the defenders made no farther appearance. The decree of reduction-improbation, though obtained in absence, was not liable to be opened up; otherwise, the certification in the action, which is one of the strongest securities of land-rights, would be unavailing. 5
_________________ Footnote _________________
1 Henderson, July 1, 1628 (8969), 4 Bankt. 36. 6; Kello, Jan. 5, 1671 (3066).
2 4 Bankt. 23. 10; Little, Feb. 4, 1826 (ante, IV. 424); Lord Barnbougil, Feb. 12, 1567 (8915).
3 4 Ersk. 1. 69; A. v. B. June 16, 1618 (6748); 2 Darling's Forms of Process, 379.
4 1 Bankt. p. 186; 3 Ersk. 7. 16.
* See references under Plea 4.
5 A. v. B., June 16, 1618 (6748); Glendinning, Jan. 5, 1699 (6744); Preston, Nov. 24, 1710 (6747); 4 Stair, 20. 4; 4 Ersk. 1. 21; Auchintorry, Jan. 31, 1622 (6734); 4 Ersk. 4. 69; Murdieson, June 21, 1625 (6748); Gordon, July 24, 1708 (6676).
1 Goldie, Jan. 13, 1758 (12195); Blair, July 23, 1789 (12196); M‘Donald, April 4, 1790 (12196); 4 Stair, 38. 23; 4 Ersk. 1.8; A. v. B. July, 1631 (8969); Bailey, Jan. 31, 1621 (9008); Kames’ Elucid. art 1. p. 2.
2 Graham, Dec. 5, 1752 (9021); Rankine, Jan. 16, 1735, 2. Elchies, 202.
* “ Note.—Baird obtained a decree of adjudication of the lands in question in 1785. This right, being apparently affected by a disposition of Henry Hay, the debtor, in favour of Henry Sinclair, his brother-in-law, in January 1775, on which infeftment had passed, Baird brought a reduction of these titles, and obtained decree of certification against Henry Sinclair, the son of the original disponee, in July 1786. Baird then made a full conveyance to William Hay, and this William Hay, after being served heir to his father, brought another action of reduction-improbation and declarator against Henry Sinclair, then said to have been a minor or pupil, and his tutors or curators, if be any bad, and against his mother and his stepfather. The extracted decree bears that Henry Sinclair, Margaret Hay, and David Auchinvole, were personally cited, and the tutors or curators edictally. Appearance was made for the defenders generally, and the production was satisfied; but no order was made for the defenders to abide by the writs as in an improbation on forgery. Great avizandum was made, and the case remitted for discussion, and then the extract bears that decree was pronounced, reducing, improving, &c. ‘the defenders failing to compear.’ This was followed by a charter of confirmation and precept of clare constat, in favour of William Hay, on which he was infeft in April 1788. William Hay sold the lands to Cowburgh, who obtained a disposition and was infeft, April 29, 1788. Cowburgh sold to Dr Lapsley, and his son was infeft, in March 1803. The son's commissioners sold to Campbell, who was infeft and obtained confirmation in 1820. Campbell disponed to the defenders, Brown and others, who obtained infeftment, and made a transaction of sale with the defender Mr Murray, Gartshore.
“Henry Sinclair, against whom the decree in 1788 was obtained, is stated by the pursuers (Cond. art. 18 and 20) to have been of the age of between ten and eleven, and to have died on or about the 27th April, 1806, having thus survived the date of the decree, and according to the pursuer's statement, at the age of twenty-eight.
“In this state of the case, the question is, whether the pursuers are entitled now to open up the decrees obtained in 1786 and 1788, to the effect of setting aside the titles on which the pursuers and their authors have been in possession of the property, as onerous purchasers, for considerably upwards of forty years before the date of the summons. The Lord Ordinary thinks that it would be a singular case of hardship if this could be done, or if these third parties, purchasers, were, post tantum temporis, required to support the decrees of reduction by an investigation of the merits of them—a thing next to impossible, however good the grounds might be; but it does not appear to him, that the plea of the pursuers can be sustained in point of law.
“The pursuers say, 1. That the decree was against a pupil having no tutors or curators, and therefore null, as no tutor was appointed. But it is settled, by the case of Sinclair against Stark, Jan. 15, 1828, that the decree was not thereby rendered null; though, if it was a decree in absence, it might be liable to be opened up on the merits,
“But the pursuers plead, 2d, That the decree was in absence, and that the writs having been produced, and no order made for the defenders to abide by them, it has not the force of a proper improbation. The defenders say that it was not a decree in absence, in so far as appearance was made for all the parties, and the production satisfied. There may be some doubt on this point according to the principles held at that time. But as there was no discussion on the merits, and no proof taken, it rather appears that it must be held that it was a decree in absence. But it does not appear to the Lord Ordinary to follow from this that it may be opened up at this distance of time, and in the circumstances of the case.
“The defenders plead negative prescription on the old statutes 1447 and 1467, and maintain that minority cannot be pleaded against prescription in such a case. This plea may deserve attention, but, as the reduction affected the titles of an heritable estate, the Lord Ordinary rather thinks that the act 1617 must govern.
“But supposing this to be so, the Lord Ordinary apprehends that there is another principle of the law sufficient for the decision of the cause. A decree in absence may be opened up by a man who was of full age as well as by a minor; and in the case of Campbell v. the Representatives of Graham, 5th December, 1752, it was even laid down ‘that, quoad a decree in absence, minority cannot enter into the question, because a major may be reponed quandocunque against a decree in absence upon paying expense and damage, and that a minor can have no stronger privilege.’ Perhaps this may not be perfectly accurate; but the Lord Ordinary apprehends it to be clear, that if a man of full age would not be heard in a reduction of a decree, as in absence, after acquiescing in it for twenty years, and seeing the property sold and resold to third parties on the faith of the decree, as little will any party be allowed to challenge a decree which was acquiesced in by the party many years after he became of age, and till his death; and farther, acquiesced in by his heirs during many years, and after titles had been repeatedly constituted in favour of third parties’ purchase. The Lord Ordinary is humbly of opinion, that, though by our law a decree in absence may be opened up to the effect of enquiring into the merits of it, the demand must be made debito tempore within some reasonable time. The principle of the thing is, that accidents may occur to prevent the party from appearing, and that he ought not to be foreclosed by a decree pronounced without discussion, if the other party can be replaced in the situation in which he was. But, to give this the least colour of justice, the claim must be made within such time as to render it reasonably possible to restore both parties. The Lord Ordinary never heard that it was a general rule that any decree may be opened up at any time within forty years, and in any circumstances, merely because it was allowed to pass in absence. Such a rule would lead to the most intolerable injustice. Parties would keep up their case till the means of contradicting it were lost. Accordingly in the case of Campbell v. Graham's Representatives above mentioned, where there was room for prescription, and the defender in the action was an infant, ‘The Lords sustained the defence that the minute of sale was at an end by the decree of reduction, and by the after sale to Edward Cutlar, in consequence thereof.’
In the present case the parties were cited personally. The minor's mother and step-father appeared and entered appearance for him. The decree was acquiesced in, not only till he came of full age, but for eight years after he was of age, and till his death, and, after that, it was acquiesced in for twenty-six years more, while in the mean time the property had been repeatedly sold on the faith of the decree, and titles by charters and sasines completed. Under these circumstances, the Lord Ordinary is of opinion, that, post tantum temporis, and in respect of the sales made and titles created, it is too late for the present pursuers to challenge the decrees as decrees in absence.”
4. The defenders Would now be exposed to great disadvantage, if the decrees could be opened up, as they must have lost proof in the interim, which would have been easily adduced in 1788, to reduce the deed fraudulently granted by Hay to his brother-in-law Sinclair. In particular, the reference to oath, under pain of the party being held as confessed, which occurred in the older style of the summons, and was an important mean of proof, was lost. And, after the death of the defender in these decrees, without challenging them, his representatives could not be allowed to do so. 1
5. Considering that above 40 years bad elapsed since the date of the decrees; and that the party in the right of challenge had been major for above 20 of these years; and that repeated sales of the property had occurred in the interim, the pursuers were barred, in all the circumstances, especially by the plea of acquiescence, from challenging the decrees. 2
The Lord Ordinary “sustained the title to exclude, founded by the defenders on the decree of certification, dated 19th July, 1786, and the decree of reduction-improbation and declarator, William Hay v. Henry Sinclair and others, dated 27th Feb. 1788, produced, together with the several conveyances executed, and titles made up, posterior thereto, and prior to the execution of the summons in the present action, on the 8th of Feb. 1832, as set forth and produced in this process: therefore sustained the defences, assoilzied the defenders, and decerned; and found expenses due, * &c.”
The pursuers reclaimed, and the Court ordered Cases.
But it is pleaded that the right of challenge is cut off by the negative prescription, and that the prescription depends not on the act 1617, but the older acts 1469, c. 29, and 1474, c. 55. These older statutes apply to moveable rights, and it appears to me that the right of these pursuers is a heritable right. The act 1617 applies to heritable actions, and it expressly excepts minority.
In regard to the remaining plea, that prescription had run for at least twenty years during the majority of the pursuers, and that various sales of the property have taken place since 1788, I think it ill-founded. Nothing short of the term of forty years can raise up a plea on the footing of prescription, and I do not think the pursuers are sufficiently connected with any of the sales to be liable to any personal objection such as homologation or acquiescence. Even though such transmissions were made with the pursuer's knowledge, and without any intimation of intention to challenge them, still, mere passive silence on their part would not bar them from afterwards challenging. Suppose that any party who is in right to reduce a deed conveying heritage ex capite lecti perceives an onerous conveyance of the heritage effected, and takes no share whatever in the transaction, but merely looks on, I do not hold him barred from his right of challenge. As to the fact that transmissions of the property repeatedly occurred, that does not affect the question so long as the party does nothing to commit himself. The pursuers are not mixed
The Court pronounced this interlocutor:—“Recal the interlocutor reclaimed against; find that there is no title to exclude; and remit to the Lord Ordinary to proceed farther as shall be just, reserving all questions of expenses.”
Solicitors: G. Gordon, S.S.C.—T. Grahame, W.S.—Agents.