Scottish Court of Session Decisions

The Lord Ordinary ( Jerviswoode) sustained this objection, and assoilzied the defender from the reductive conclusions of the action.

The pursuer reclaimed.

Mair for reclaimer.

Clark and Lamond, for respondent, were not called on.

Lord President—I have no doubt in this case, taking it on the pursuer's own statement. His statement is this, that when in possession of a property belonging to the defender, under a lease, dated in 1862, for seven years, he erected at his own expense, on ground beyond the ground let to him, and encroaching on the public street, an additional building. Then he renounced his lease by agreement on 12th July 1864, and he ceded possession of the rest of the property; but when asked to give up this additional building, he says, “No, it is not yours; and though I admit it is not mine, I insist that it is erected on the public street; and as it is not yours, you can't get it, and I am not to be put out.” That is a quite untenable position to take up. The pursuer confessing himself to be absolutely without a shadow of title to heritable subjects, has no title to sue an action to reduce proceedings which have the effect of removing him from these premises; and just as little has he a title to open up a decree of declarator at the instance of the defender against the only parties who could set up an adverse title, because if he had appeared in these proceedings he could not have been heard to open his mouth in that process.

Lord Curriehill—The position which the pursuer of this action takes, is, that he is a squatter. I so far go along with Mr Mair in thinking that a squatter might reasonably object to any one of the public coming to challenge him. But that is not the position of the pursuer, because there has been a judgment pronounced as between these parties to the effect that the pursuer has no title. That has been extracted, and has been carried into execution so far that the pursuer has relinquished the possession to the defender, who is now in possession. The pursuer now says ( reads article 8) so that the defender not only has a decree of this Court assoilzing him from the claim made by the pursuer, but he is in possession with consent of the pursuer. The defender is now called on to produce the decree in his favour. A party is not bound to produce any right that belongs to him, or to enter into his grounds of possession at the call of any party who is without a title. As a defence against this action, I have no doubt that the defender is entitled to call on the pursuer to show his title to sue.

Lord Deas—The pursuer derived all his right to the property under the lease mentioned in the pursuer's statement. He got a lease which comprehended this piece of ground, provided the landlord had power to give it. While possessing under that lease, he erected this building. That is all the title the pursuer ever had. He renounced the lease, and, of course, he renounced all he got under the lease. Besides, in the action of declarator brought by this defender against the pursuer and the magistrates, the magistrates have allowed decree to go out against them, the effect of which is to make him the owner of the ground as in a question with them. This is an action of reduction of a decree in absence, and in such an action, before the party can touch the decree, he must show that, if it is opened up, he will probably succeed in his action. If the pursuer had not shown that it was impossible for him to succeed on the merits he might have perhaps been allowed to say, “Satisfy the production in the first instance.” But it is abundantly shown by the pursuer himself that he could not succeed in his action if he did go on. In these circumstances it is not necessary to satisfy the production. Whether the pursuer may have a claim for the expense of that erection, is not touched by this interlocutor, but undoubtedly he has no title to sue this action.

Lord Ardmillan—I never saw a more hopeless case than this. The pursuer seeks to reduce an interlocutor of the Sheriff on a possessory question without having any possession; and he seeks to reduce the decree of this Court without having any heritable right. In these circumstances he cannot possibly succeed. I don't think it necessary that he should have a good case on the merits, but he must have a title to sue. The defender says the building is on his property. The pursuer has no title except from the defender, and the Police Commissioners, the only other parties who are, the pursuer says, the true owners, don't say they are so, and allow a judgment to pass against them, constituting a right in the defender as against them.