Scottish Court of Session Decisions

John Cubbison was proprietor of the lands of Banks and others, in Ayrshire. He had two sons, the eldest, David, and the second, John (2). He had contracted debts to a considerable amount, in which John (2) had become bound along with him, and on 16th March, 1765, he granted a disposition of the lands of Banks and others, to John (2), bearing in gremio to be granted in security and relief of these debts, and in security of a provision to John (2). The deed also declared that if David should, after the granter's death, “ratify these presents and also dispone all right of reversion in the said lands, competent to him as my heir,” to John (2) the latter should be bound to pay 2000 merks to David. On 12th April, 1705, John Cubbison (2) was infeft under this conveyance. On 17th May, 1766, John Cubbison (1) died. On 12th Jan, 1769, David Cubbison paid the debts, and the provision, in security of which, the disposition had been granted to John (2), and, on the same day John (2) granted a disposition of the lands to David, narrating that his father's deed had been granted in security only, and that David had paid the debts and provision. On 14th January David granted a heritable bond to William Aird, in Killochside, for £1500. On 22d January, David died, without having been infeft. He left one son, William Cubbison, and two daughters, Mary and Margaret. On 8th July, 1773, Aird obtained decree of constitution against William Cubbison, a minor, and his tutors and curators, if he any had, and on 4th December, 1773, he gave him a charge to enter heir in special to his father David, and his grandfather John (1), in the lands of Banks and others. Aird then raised a process of adjudication of these lands against William Cubbison, and on 25th March, 1774, he, in absence of the defender, obtained decree of adjudication of the lands against him and his tutors and curators, if he any had. In 1775, Aird obtained decree of maills and duties and entered into possession of the lands. Aird afterwards raised a process of ranking and sale of the lands, in which, after he had obtained decreet of certification, William Cubbison made appearance, and raised a reduction-improbation of that decreet. In that process a curator ad litem was sisted to William Cubbison, who was a minor, and the process of ranking and sale was sisted till the issue of the reduction. Before raising the reduction, William Cubbison had expede a general service as heir of his grandfather John (1), and obtained a precept of clare constat from the superior of the lands of Banks, under which he was infeft as heir to his grandfather in April 1784. In the reduction, William Cubbison produced the disposition by his grandfather to his uncle John (2), and the disposition by John (2) to the pursuer's father David. Aird objected that William Cubbison had no title to insist as heir to his grandfather John (1), because his grandfather had been entirely divested in his own lifetime.

A protracted discussion ensued, in the course of which various mutual minutes, memorials, and informations, and representations and answers were given in, hinc inde, and at length, the cause being reported to the Court, their Lordships on 20th June, 1786, “having advised mutual informations, found that the pursuer had produced no sufficient title to insist in the present process of reduction, and therefore assolzied the defender and decerned; and farther, found the pursuer liable in expenses.”

Prior to this, William Cubbison had died abroad, and Aird, on receiving that intelligence, had raised an action of transference against his sisters Mary and Margaret Cubbison and their tutors and curators, if they any had. On 25th January, 1786, Aird obtained decree of transference, the other parties failing to appear; but on 28th January all parties appeared, and were ordained to box informations to the Court. It was on the mutual informations then boxed, that the cause was decided by the interlocutor already quoted. The information for Mary and Margaret Cubbison was lodged in the name of William Cubbison, but it was in truth prepared and lodged for them. And when they put in a representation against the decree of absolvitor, of 20th June, 1736, they admitted that they had lodged their information “in the name of the said William Cubbison," as they alleged that they were not then certain of his death. That representation was objected to as incompetent, and was, on answers, refused. The interlocutor of the Court assoilzing Aird, was adhered to, and the Court “decerned and ordained the said Mary and Margaret Cubbison to make payment to the said defender of the expenses” of process as modified.

Thereafter Aird insisted in the ranking and sale of the lands of Banks and others, and decree of sale was pronounced in his favour as the highest offerer, on 8th March 1787. The lands had been valued at £1269, and were sold at £2490. A remit was then made to the Lord Ordinary in the ranking, for making up a scheme of division. Aird gave in a state of the debt alleged to be due to him, after deducting his intromissions with the rents, under his process of maills and duties, and it was taken out to see, by the procurator for Mary and Margaret Cubbison, who lodged objections to it. In virtue of these objections, Aird was obliged to debit himself with a sum of £200, which had been omitted in his state; and another item, stated at £300, as the sum due for penalty, damages, and expenses, “by decreet of constitution, dated 8th July, 1773,” was restricted by the Court to “the actual expenses disbursed” as there specified. The judgment of the Court bore to proceed “after having considered the foresaid objections for Mary and Margaret Cubbison, with the answers thereto.” Upon correcting the state of Aird's debt, it appeared that a balance of £683 remained, after paying the debts ranked, and the procurator for Mary and Margaret Cubbison prayed the Court to approve of the report and state, exhibiting that balance; “to find that there arises a balance of the price of the lands purchased by William Aird, of £683, &c.; and decern him to make payment of that balance to Mary and Margaret Cubbison, daughters of the deceased David Cubbison.” Decree was pronounced as craved. They received payment of the balance of the price, and granted a discharge for it. Aird soon afterwards conveyed the lands to William Hyslop, and executed a disposition and assignation in his favour, of the lands, and of the decreet of sale, and of the various warrants thereof; in September, 1791, Hyslop obtained a charter of sale from the superior, and was infeft under it, in 1803.

John Cubbison (2) lived till 1817. After his death, and when Mary Cubbison was also dead, Margaret Cubbison, having expede a general service as heir to her uncle John (2), raised an action of reduction-improbation against William Hyslop in 1832, The action struck at the decree of adjudication obtained by Aird in 1774, the decree of sale in Aird's favour in 1787, the conveyance by Aird to Hyslop, and the feudal title made up by Hyslop. It also struck at various earlier writs. The action also contained subordinate conclusions of removing from the lands, accounting for the rents, &c. In this summons the pursuer expressly admitted that she had received her share of the balance of the price of the lands, but alleged she had granted a discharge for it in ignorance of her rights.

In making up the record, the pursuer denied the existence of the disposition of 12th January, 1769, by which John (2) conveyed the lands to his elder brother, David. The defender produced an extract of the decree of absolvitor in the reduction 20th June, 1786, showing that in that process both parties admitted the existence of the deed, and pleaded on its import and effect.

After the record was closed, the Lord Ordinary sustained an objection to the pursuer's title, and dismissed the action.

The pursuer reclaimed.

The defender then stated to the Court that the disposition 12th January, 1769, which he had hitherto been unable to recover, was in the Register House, having been recorded in 1785, and he obtained warrant “before answer” to transmit it to the process. The Court afterwards held that the objection to the title was not competently on the record before them, and, therefore, recalled the interlocutor of the Lord Ordinary, and remitted to his Lordship to proceed. ¹

At a subsequent stage of the cause, the Lord Ordinary assoilzied the defender, but intimated in a note that he did not rest his judgment upon the disposition 12th January, 1769, as the competency of doing so was denied, and there were sufficient grounds for the judgment independently of it.

The Court, on a reclaiming note, “remitted to the Lord Ordinary to take the deed of 12th January, 1769, into consideration, and all the title-deeds and documents connected therewith, and to grant warrant for letters of incident diligence against havers and witnesses for proving the actual delivery of the said deed or non-delivery, reserving all pleas and objections hinc inde.”

Under the diligence thus allowed, a fitted account was recovered between David and John (2), dated 12th January, 1769, striking the balance due to John (2) at £425; acknowledging the receipt of a payment of £300 in cash, and a bill at one day's date for the balance; and providing that the writs should in the meantime be in the hands of the agent of John (2) as a security till that balance was paid.

The pursuer thereafter pleaded, first, as to the effect of the disposition 12th January, 1769. It ought not to be looked at by the Court, not having been produced till after the record was closed. But, at all events, it was never delivered, and David died uninfeft, within ten days after it was subscribed, so that the rights of parties remained precisely on the same footing as if it had never been executed. Second; laying that disposition out of view, the pursuer must prevail in her reduction. For (1st) this was a proper competition of rights to land, the question being, which party had the best feudal title. The pursuer had connected herself, by service, with John (2), who was infeft under a disposition from John (1). The right of the defender was not clothed with infeftment till 1803, so that the positive prescription had not run in his favour; and no course of negative prescription, however long, could extinguish the infeftment of John (2), or prevent the pursuer, who connected herself with that infeftment, from prevailing in the competition, unless the defender was able to instruct a preferable right, independently of all aid

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¹ Jan. 22, 1836 (ante, XIV. 327).

from the negative prescription. (2d) The competing right of the defender ultimately rested on his decree of sale in 1787, and his adjudication in 1774; and, throwing aside the operation of the negative prescription, as inapplicable, both of these decrees were irregular and inept. The decree of adjudication was inept, because it followed on a charge to William Cubbison, to enter heir in special to his father David, and his grandfather John (1), as last infeft in the lands of Banks; whereas David had never been infeft at all, and John (1) was divested by the disposition and infeftment in favour of John (2); it was also inept as being led in absence, against a minor; and as being led for a larger sum of debt than was due. Again, the decree of sale was invalid, for each of the following reasons:—The title of Aird, who pursued the sale, rested on the adjudication which was inept;—the action was directed against William Cubbison, who had no right or title to the lands, the full right thereto being still vested in John (2), who was then alive, and who was not made a party to the process;—William Cubbison was then a minor, and was abroad, and had granted no mandate to any party to appear for him, so that the whole proceeding, as against him, was irregular, any appearance made in his name being without a warrant;—the debts for which the lands were sold were, in great part, the debts of third parties, for which the estate could not be made liable;—and even assuming the debts to have been correctly stated, the estimated value of the lands, as the proven value, was greatly below their true worth, and the estate was not bankrupt. If the decree of adjudication and decree of sale were thus inept, the right conveyed by Aird to the defender, which was entirely founded thereon; and the title under the charter of sale made up by the defender, must fall to the ground.

In regard to the appearance made for the pursuer and her sister, in the reduction of the decreet of certification pronounced in the ranking and sale,—and in regard to their acceptance of the balance of the price of the lands,—the pursuer first alleged that she and her sister were minors at the time, and had acted in ignorance of their rights; and latterly denied the fact, but contended that, even if true, it could not restore validity to proceedings so irregular, or cut off the pursuer's right of challenge.

The defender answered, first, that the disposition 12th January, 1769, must be regarded by the Court, in deciding the cause, both because the last interlocutor remitting to the Lord Ordinary had expressly enjoined his Lordship to take it into consideration; and because it was essential to the justice of the case to do so. And the effect of that deed was to put an end to the pursuer's case. She libelled on a service to her uncle John (2). But as his right was held in security merely, and the pursuer's father David paid the debts secured by it, the right of John (2), became extinct even though he had never executed or delivered the disposition 12th January, 1769. Farther, as the execution of that deed was the counterpart of the payment of the debts in question, the deed was perfectly good to David (and his children or creditors) even if it had not been delivered to him, and it immediately vested in him a personal right, to the lands. And again, as the titles of the lands were merely retained for a time, by the agent of John (2), till the balance of price should be fully paid up; and David, as heritable proprietor, had granted a heritable bond to Aird; and, after David's death, Aird had put the disposition 12th January, 1769, on record, during the lifetime of John (2); and as the reduction, ending in the decree 20th June, 1786, was contested between Aird and William Cubbison, David's son, as the sole parties interested; and as the lands were finally sold, and the price paid, after William's death, to the pursuer and her sister Mary, the children of David; it was sufficiently proved that the disposition 12th January, 1769, was delivered, and was understood by all parties to be so, and that John (2) was totally divested. From this it followed, not only that the pursuer, who connected herself only with John (2), could not prevail in her reduction; but also that the decree of adjudication by Aird was ex facie regular, as it proceeded on a charge against William Cubbison to enter heir both to his father David and his grandfather John (1), one of whom must have been the true party, seeing that the temporary right of John (2) was a mere security, and was previously extinct.

But independently of the disposition 12th January, 1769, the pursuer's action was ill founded. For, although the negative proscription never could extinguish an infeftment, or a real right of property in heritage, it might be effectually pleaded against a right of action, and it cut off all real, as well as personal actions. It was no bar against pleading the negative prescription, that a party could not also plead the positive, provided that the negative prescription were only pleaded within its proper province. In the present instance, the defender was in possession of the lands under a complete feudal right, clothed with infeftment. And in order to cut that down, the pursuer had raised a reduction, inter alia, of the decree of sale, without which she could not succeed in voiding the defender's right. But this action, and all the pleas urged in support of it, were cut off by the negative prescription. ¹ The procedure in that action was ex facie regular, and in foro. And as to the pleas alleged, viz. that William was a minor, and abroad, and had granted no authority to any party to appear for him; that the estate had been sold for debts, some of which were those of third parties; that the proven value was under-estimated, and the estate was not bankrupt, &c., these were, each and all, cut

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¹Paul, Feb. 8, 1814 (F. C.); E of Dundonald, May 12, 1836 (ante, XIV. 737).

off by the negative prescription. The decree of sale was therefore unchallengeable; and as the pursuer could not shake the defender's feudal right, without setting it aside, the defender must be assoilzied.

The defender also pleaded, that, even if it were competent to go into the merits of the processes of ranking and sale and adjudication, these were regular and unexceptionable; and, separately, that the pursuer by her appearance in the reduction (20th June, 1786), and again in the ranking and sale, challenging the state of debts, and finally uplifting the balance of price, was barred, especially after so long acquiescence, from challenging a feudal right founded on the decree of sale.

It was separately pleaded by the pursuer, that, even if the decree of sale could not be reduced, her feudal right was radically preferable, in competition, to that of the defender; to which the defender answered, that, both in reference to the shape of the action, and the merits of the question, that plea was untenable.

The Lord Ordinary “having resumed the remit by the Court of date 9th July last, considered the deeds and documents, and the report of the diligence, and heard the counsel for the parties on the whole cause, sustained the defences as set forth in the pleas for the defender, assoilzied the defender, and decerned and found the pursuer liable in expenses, subject to modification.”

The pursuer reclaimed.