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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> French v Pinkstan [1835] CA 13_743 (13 May 1835)
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Cite as: [1835] CA 13_743
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SCOTTISH_Shaw_Court_of_Session
Page: 743↓
v.
Subject_Prescription—Entail.—
A party executed a deed of settlement of lands subject to a power of revocation, and thereafter an entail of the same lands, in which he revoked the deed of settlement; the liferent institute under both deeds made up titles under the settlement, and a liferent substitute, on the death of the institute, took possession, but made up no titles; the next heir of entail, being apprehensive that prescription might run against the entail, insisted that titles should be made up under the entail, and it was agreed that this should be done by the heir taking infefttnent under the entail, subject to the burden of the substitute's liferent, which was done: and the substitute continued to possess for several years, and, at his death, above 40 years' possession had run—held that his possession was to be imputed to the entail, and therefore prescription did not apply.
In 1781, the late Fleming Pinkstan, surgeon in London, by disposition and settlement, conveyed the lands of Limehouseboig, Lanarkshire, in liferent, to his brother, Hugh Pinkstan, and, after his decease, to Hugh's daughter, Ann Pinkstan, and the heirs of her body; whom failing, to Hugh's son, Fleming Pinkstan, and the heirs of his body; whom failing, to another nephew of the disponer; whom failing, to Dr Hugh French. He expressly reserved power to alter at any time. Mr Pinkstan delivered the deed to his brother Hugh, who predeceased him. On the death of Hugh, the deed was found in his repositories, and was recorded in the Sheriff-court books of Lanarkshire in November, 1792. Mr Pinkstan died soon afterwards in the same year.
In November, 1791, he had executed a deed of strict entail of the lands of Limehouseboig, disponing them “to and in favour of Hugh Pinkstan, my only brother-german, residing at Limehouseboig, in liferent, for his liferent use only, during all the days of his lifetime, and after his decease to and in favour of Ann Pinkstan, his only lawful daughter, my niece, and the heirs whatsoever of her body, but with and under the conditions, provisions, restrictions, clauses irritant and resolutive, declarations and reservations after written; and failing the said Ann Pinkstan, and the heirs whatsoever of her body, to and in favour of Fleming Pinkstan, my nephew, only son of the said Hugh Pinkstan, in liferent, for his liferent use only, during all the days of his lifetime; and after his decease, to and in favour of Dr Hugh French, my nephew, and the heirs whatsoever of his body.” The deed contained clauses prohibiting an heir of entail to possess under any other title; or to alter the order of succession; or to sell or burden; all which were duly fortified by irritant and resolutive clauses. It farther contained a clause, revoking all former settlements, and declaring that the deed of entail, though undelivered at the grantor's death, should be as valid as if delivered. It contained an obligation on Hugh Pinkstan, Ann Pinkstan, and Fleming Pinkstan (the nephew), to record the deed in the register of entails
Under the procuratory in the deed of settlement of 1781, Ann Pinkstan obtained herself infeft in December 1792. She possessed the property till March 1793, when she died unmarried. Prior to this event Dr Hugh French caused the entail to be recorded in the register of tailzies. On the death of Ann Pinkstan, her brother, Fleming, entered into possession of the lands, but without completing titles. His possession thus continued till 1823, when the Rev. Pinkstan Arundel French, son of Dr Hugh French, now deceased, addressed a letter to him, stating that he must make up titles under the entail as it was now thirty years since the death of the entailer, and a prescriptive possession against the entail might perhaps be pleaded unless titles were made up in conformity with it. A correspondence of law-agents, together with an opinion of counsel, followed, under which Fleming was advised that he could not successfully resist the right of the Rev. Mr French to have titles made up under the entail. His law-agent, however, objected to the mode of making up titles which was proposed by the law-agent of Mr French, and suggested that Mr French, being fiar, and Fleming a mere liferenter, Mr French should make up his own title as fiar under the entail under burden of the liferent of Fleming. In consequence of this the Rev. Mr French was infeft in the entailed estate in 1826, under burden of the liferent of Fleming. In 1832 Fleming died, and Mrs Kilpatrick, or Pinkstan, and others, his daughters, expede a service as heirs-portioners of line of Ann Pinkstan, and of provision to her under the deed of settlement of 1781. They obtained infeftment, after which the Rev. Mr French raised a reduction of the settlement 1781, the sasine of Ann Pinkstan in 1792, the service of Mrs Kilpatrick and her sisters, and their infeftment.
French pleaded that the settlement 1781 contained a clause reserving power to alter, and was moreover, sua natura, a mortis causa deed. The entail of 1791 expressly revoked all former settlements, and that entail was thus the sole effectual settlement of the lands at the death of the entailer. It still remained an effectual deed, as no course of prescriptive possession had run against it, in respoct, 1st, That Dr Hugh French recorded it in the register of tailzies before Ann Pinkstan's death; 2d, That Fleming (the nephew) made up no titles, and his possession must be ascribed to his right under the entail, since it was both his duty under the entailer's injunction, and his interest under pain of forfeiture, to possess by that title only; and 3d, That the correspondence followed by the concerted making up of a title in the person of French, for the express purpose of interrupting prescription and completing his investiture under the entail, was effectual to bar the plea of prescription.
The defenders alleged that though Fleming (the nephew) never made up titles in fee-simple, he exercised all acts of property. He had sold a large quantity of growing timber—he worked quarries—and he had sold a parcel of the ground itself to a railway company requiring it for their road; and they pleaded that Ann Pinkstan, having made up titles under the settlement 1781, it must be presumed that her brother, Fleming, though he made up no titles, continued the possession as in reference to the standing investiture made up by Ann. It was for his interest to do so in order to extinguish the entail, and the acts of proprietorship above-mentioned were a farther proof that he had done so. But his possession had thus continued till his death in 1832, by which time forty years had run against the entail, and in favour of the investiture of Ann Pinkstan.
In regard to the correspondence 1823–5, and the infeftment of the pursuer, no possession had followed on that infeftment, and it was ineffectual to interrupt prescription, seeing that Fleming's possession continued the same as before.
The Lord Ordinary found “that the pursuer has the legal right to the lands in dispute, and is entitled to have the writings called for set aside; therefore declared and reduced accordingly, and decerned; and found the defenders liable in expenses.” *
_________________ Footnote _________________
* “Fleming Pinkstan the first, settled the lands by the deed of 1781, under which the defenders claim. In 1791 he revoked this deed, and executed the entail on which the pursuer founds. The plea of the defenders is, that the second deed has been extinguished by prescription on the first.
“The facts on which this prescriptive title rests are these:—The granter died in 1792; his niece, Ann Pinkstan, was the institute, and ought to have made up her title under the entail, because this was the only subsisting deed, and because an omission to hold by it alone implied an irritancy. Nevertheless, she made up her title under the revoked settlement of 1781, and died unmarried in 1793. The entail had been recorded during her life by the pursuer's father. She was succeeded by her brother, Fleming Pinkstan (the second), who was called as a liferenter by the entail, but had been a fiar under the deed 1781. He entered into possession, but made up no title at all, and continued to possess from 1793 till his death in December 1832. His daughters, the defenders, then served heirs of line and provision to Ann, under the deed of 1781, and have been possessing since. This action was raised in 1833, but the defenders maintain, that the possession by Ann and her successors having endured from the date of the service in 1792 till Interrupted by this process the entail has been worked off.
“And so it would, if Fleming Pinkstan (the second), who held the lands from 1793 to 1832, had always possessed unequivocally under the settlement of 1781. But I do not think that he did. His possession is ascribed by the defenders to his apparency to Ann, who bad passed the entail by, and certain acts are referred to, as evincing that he meant to possess as fiar under the first deed, and not as liferenter under the second. These acts are far from decisive. Some of them, such as cutting wood, letting leases, and quarrying minerals, are often done, though irregularly, by liferenters, and the only sale that took place was a compulsory one for a public improvement under a statute, and it is not averred that any of them were known to the fiar. Now, if there be any doubt as to the true character of his possession, it must be presumed that he intended to do what was his duty, and in reference to forfeiture of his interest which was to hold solely by the entail.
“But all doubt was removed by the proceedings between the pursuer and him in 1824. The substance of these proceedings is, that when legal measures were about to be resorted to for compelling him to connect himself directly with the entail, and when he was required to do so, he virtually acknowledged himself to be but a liferenter (that is, to be under the deed of 1791), because, after consulting counsel, he instructed the pursuer that the correct mode of proceeding was for him, the pursuer, to make up his title as fiar under the entail, burdened with the liferent.
“This was accordingly done, at his suggestion, and for his accommodation, and after this both parties rested on the faith of this arrangement. Fleming Pinkstan was himself personally a party to these proceedings, but the actings of his agents would be enough.
“Now, whether this be viewed as an interruption of the prescription, or as an election and renunciation by him of the title he really held by, or as both, I think it conclusive. Its import is, that his possession, if not during the whole period, at least after 1824, must be ascribed to the deed which he himself then solemnly adopted. It has been urged, that a correspondence cannot interrupt prescription. But there was a great deal more than a mere correspondence here; and it is not as an interruption only, or chiefly, that these proceedings are decisive. They are more important, as marking the true title of possession. According to what the defenders now state, their father had incurred a forfeiture, and when required to save himself from this, by making up his title under the entail, he did so in what he thought (no matter whether correctly or not) the proper way, viz. by coming in as a burden on the title then made up under that deed by the fiar, I cannot understand how his subsequent possession can be immediately ascribed to a title totally inconsistent. And without the whole of his possession there is no prescription.”
The defenders reclaimed.
The other judges concurred; and
The Court adhered on the merits, but altered as to expenses, which they found due to neither party,
Solicitors: W. & D. Allester, W.S.— W. A. G. & R. Ellis, W. S—Agents.