Scottish Court of Session Decisions

Lord President—There is no authority for saying that an apparent heir is entitled to recover or demand possession of all the title-deeds of his or her ancestor as a matter of absolute right in all circumstances. An entered heir certainly has that right. It might be, though I should be sorry to anticipate the decision in that case, that an apparent heir could not exercise some of the undoubted rights of an apparent heir without possession of his ancestor's titles. In such circumstances a case might be made out which would vindicate his right to recover the title-deeds. But no such circumstances are here laid before us. The case, as presented, is one of the purest and simplest possible. The question is just this—Is an heir—apparent entitled to instant delivery of his ancestor's title-deeds from the holder, without serving, and without instructing any special necessity? As at present advised, I am not inclined to assent to such a proposition. But at the same time I should be sorry to see this petitioner, where the property is so small, and the expenses already incurred so considerable, put entirely out of Court. We are not informed whether it is her intention to make up a title and enter heir or not. I do not wish to insist upon her committing herself to that course, but, at the same time, all the length I think we can go is this, to dismiss the appeal, and sustain the interlocutor of the Sheriff, but superseding extract until a decree, at any rate of general service, is produced by the petitioner. The competency of setting up a title cum processu is quite established, and that is, I think, all the favour we can show the petitioner under the circumstances.

Lord Deas—It cannot be denied that a great deal of responsibility lies upon any stranger who happens to be the holder of title-deeds, in whatever manner he may have come by them. And I think that from that responsibility he is entitled to demand a certain relief, more particularly if ho came honestly by the deeds in question. Suppose, for instance, that an heir-apparent comes and gets from a party, who is for some cause the custodier of them, possession of the title-deeds of a large estate, and after all does not enter heir, the next heir, entitled to pass him over and serve to the common ancestor, may very well come to the former custodier and say, Where are my title-deeds? and if they are not forthcoming, may have a very good case against him. We cannot, of course, here go into the question whether this woman is going to die in a position which would entitle the next heir to pass her over?—but still it is an example showing the difficulties which might occur.

According to my own recollection in the Bredalbane case, though we found the heir-apparent entitled to enter into possession and draw the rents, we refused to grant his application for possession of the title-deeds of the estate, which were in the hands of the late Earl's trustees. I am disposed to think with your Lordship that it is not absolutely necessary to decide this point in such a small case as the present, but that we are entitled to take the intermediate course proposed by your Lordship.

Lord Ardmillan—There are three different cases in which an application such as the present may be made. First, against a person making a competing claim to the estate; in which case an apparent heir could not succeed in his demand, as that would be only to arm one competitor out of the other's arsenal. Second, where the case is such as that referred to by Lord Deas in his remarks upon the Bredalbane case, where there is a competition, and the title-deeds are in the hands of a third party. And third, where, as in the present case, the holder alleges no right whatever to the custody of the deeds, but simply says he is to keep them until the heir chooses to serve. I think that in such a case the holder cannot resist the proposition that he is not to keep them perpetually, but I am inclined at the same time to adopt your Lordship's opinion that he may be entitled to some protection, and I think your Lordship's proposal entirely meets the case.

Lord Kinloch—I feel great difficulty in qualifying the right of the petitioner as proposed by your Lordships, because it is impossible to say that that qualification does not import that the lady has no right to the title-deeds without serving heir. I can see no sufficient authority for that proposition. It is true that she is not entitled to the property of the title-deeds. She is no more entitled to the property of the title-deeds than to that of the estate, without expeding a service of some kind. But the present is simply a question of custody or possession, and I view it as a case in which the party who has the titles has no right or interest to keep them. He seems to be no better than a party who has come into possession of the title-deeds by accident, and the question is, Whether he is not bound to give up their custody to this lady, who is the heir-apparent? Certainly, as apparent heir, she is not the legal proprietrix. But she is entitled to perform a great many acts of proprietorship which require the use of the titles. She is entitled to the possession of the subjects, and I cannot see why she should not equally be entitled to the possession of the title-deeds. If Mr Jackson could say that any serious risk was incurred by him in giving them up, then we should be bound to take steps to protect him. But nothing of the kind is pretended; and I think a decree of this Court will prove sufficient protection.

The Court accordingly refused the appeal; adhered to the interlocutor of the Sheriff, but under condition that extract should be superseded until a general service was produced by the petitioner.