Scottish Court of Session Decisions

By postnuptial contract of marriage entered into by James Young, wheelwright in Langholm, and Janet Scott or Young, his wife, and dated 15th April 1812, the said James Young assigned and disponed to his wife, in case she survived him, his whole goods and gear, and, inter alia, a sum of £100 contained in a bill dated 24th February 1801, and accepted by James Young secundus, and which had been protested and registered. Mrs Young made a similar conveyance of her whole estate to her husband. The contract also provided that at the death of the longest liver of the spouses the goods in communion were to be divided equally amongst the respective children of the spouses in two equal shares or halves. Prior to her marriage to James Young, Mrs Young had been married to a man named Armstrong, by whom she had two children named Richard Armstrong and Margaret Armstrong. Mrs Young survived her husband.

In 1848, after the death of both spouses, a

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summons of adjudication was raised by the said Richard Armstrong and the three children of his sister Margaret Armstrong or Nichol, against certain parties named therein, as the representatives of James Young secundus, who was a son of James Young primus, one of the parties to the contract of marriage, and was the debtor in the £100 bill.

The subjects against which this action of adjudication was raised consisted of a piece of land with dwelling-houses, stable, and yard, situated in the High Street of Langholm, and which piece of land James Young primus had, by disposition dated 20th January 1801, made over to his son James Young secundus in consideration of the sum of £100 contained in the bill; and the demand in the action was for payment to the pursuers of the sum of £50 and interest, being the half of the sum of £100 contained in the bill above referred to, and which they claimed as being the representatives of their mother Mrs Armstrong or Young. The pursuers Richard Armstrong and the Nichols never made up any title to the estate to which they had acquired right through the said postnuptial contract of marriage. The pursuers obtained a decree of adjudication on 8th March 1849, upon which there followed an instrument of sasine, which was recorded on 8th January 1850, and a charter of confirmation was granted by the superior, the Duke of Buccleuch, on 25th March 1850. The subjects were held by the adjudgers until 1st May 1856, in which year they were disponed by them to the now deceased John Connell, distiller, Langholm, for the sum of £100. On 18th June 1861 there was obtained a decree of declarator of expiry of the legal. This decree was in absence. Mr Connell died in 1876 survived by a widow and four children. He left a trust-disposition and settlement dated 1875, by which he conveyed his whole means, heritable and moveable, to trustees named therein. These trustees were the leading defenders in the present action of reduction, which was raised by Mrs Elizabeth Swallow or Hinton and Mrs Ann Swallow or Lovick, who claimed to be the nearest heirs-portioners of James Young secundus, and as such in right of the subjects adjudged. The defenders, other than Mr Connell's trustees (who alone appeared), were the heirs of the pursuers of the adjudication. The deeds sought to be reduced were, 1st, the decree of adjudication of 8th March 1849; 2d, the instrument of sasine following thereon; 3d, the charter of confirmation by the superior in favour of the adjudgers; 4th, 5th, and 6th, the dispositions to Connell of various portions of the adjudged lands; 7th, the decree of declarator of expiry of the legal of January 6, 1861; 8th, a notarial instrument in favour of Connell; 9th, Connell's trust-disposition and settlement in so far as it purported to convey the lands embraced in the adjudication.

The pursuers pleaded—“(1) The debt on which the said pretended decree of adjudication proceeds having suffered prescription at the date of the said decree, the pursuers are entitled to reduction of the said decree and the writs following thereon, as concluded for. (2) The pursuers of the said actions of constitution and adjudication having made up no title to the claim of debt upon which the said actions proceeded, the decrees in both actions should be reduced.”

The defenders pleaded—(1) No title to sue. (2) Title to exclude.

On 15th November 1882 the Lord Ordinary pronounced the following interlocutor:—“Finds it not instructed that the citation in the actions of constitution and adjudication, referred to on record, was insufficient; and finds that the debt on which the adjudication proceeds had not suffered prescription at the date when the action of constitution was instituted: Sustains the defenders' first and second pleas-in-law, repels the reasons of reduction, assoilzies the defenders from the conclusions of the action, and decerns: Finds the defenders entitled to expenses, so far as not already disposed of, &c.

“ Opinion.—The decree of adjudication which forms the basis of the defenders' title was obtained on 8th March 1849. The infeftment following upon it was recorded on 8th January 1850. The charter of confirmation by the Duke of Buccleuch as superior was granted 25th March 1850. It was not disputed at the debate, though it is not admitted on record, that the defenders and their authors have been in possession of the subjects in question by virtue of their infeftments since that date. A decree of declarator of expiry of the legal was obtained on 18th January 1861.

In this state of matters the pursuers' reasons of reduction are met with the plea of positive prescription, and the first question seems to be whether that plea is well founded. For, if it is, it will establish the defenders' right, and exclude all objections to the validity of the title, excepting in so far as these objections arise upon the face of the proceedings and are pleadable by the pursuers.

It was conceded on the part of the pursuers that an adjudication for debt, such as this adjudication professes to be, if followed by infeftment and the requisite possession, is a sufficient basis of prescription. The point has long been understood to be settled.—1 Bell's Com., 5th ed., p. 707; Jurid. Styles, 1828; Signet Letters, p. 333; and the case of Robertson v. Duke of Atholl, 3 Dow's App. 108.

But it was maintained on behalf of the pursuers that the requisite possession is forty years after expiry of the legal, and that the 34th section of the Conveyancing Act 1874 has no application to such a title. The enactment of that section applies only to ‘any ex facie valid irredeemable title.” It is said that the title in question is not ex facie an irredeemable title, and therefore that even if it were ex facie valid, twenty years' possession subsequent to the expiry of the legal will not suffice to found a plea of prescription upon such a title.

My opinion is that infeftment on a decree of adjudication for debt is not an irredeemable title within the meaning of this statute. Such a decree adjudges the property to the pursuer of the action. But it does not profess to do so irredeemably. It discloses the fact that what is done is done in payment and satisfaction of debt; and it is notorious that there remains in the debtor, notwithstanding such adjudication, a right of redemption which requires to be extinguished either by declarator of the expiry of the legal or by the combined operation of the positive and negative prescription. The law as stated in Ormiston v. Hill is ‘that to convert an adjudication into an iredeemable right, and extinguish the right of the reverser, it is necessary that the adjudger

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shall either obtain decree in a declarator of expiry of the legal, or regularly invest himself with charter and sasine upon the adjudication, and possess thereon for forty years.' And Professor Bell explains that this means forty years subsequently to the expiration of the legal. The right of the debtor to redeem his property and to open up or challenge a decree of adjudication for debt is not limited by the Conveyancing Act of 1874, and canot be extinguished without the aid of the negative prescription, to which that enactment does not apply.

Holding, therefore, that the pursuers' objections are not excluded, the question is as to their merits.

The leading objection is that the debt had suffered prescription. It was conceded that an interruption had been effected by the diligence executed 9th and recorded 19th August 1805. But it was contended that forty years' prescription subsequent to that date had been suffered, because although a general charge was given on 8th August 1845, the summons of constitution raised 9th August 1845 was incompetent, being raised before the charge of forty days had expired.

I am of opinion that the summons of constitution was competently raised, and that the decree of payment which passed on 28th January 1846 is not objectionable, on the ground that it was pronounced in an action instituted before the expiry of the forty days' charge. The execution of the summons, I was informed, took place on 9th August 1845, and it does not appear from the decree produced to have been beyond the forty years. The execution on 9th August would, in my opinion, have been sufficient if the defender had entered heir and defended. I think it was equally validated by his allowing the charge to expire and decree to be taken. I think that the expiry of the charge before decree was taken had the effect of obviating any objection that might have been urged against the action as premature.

The second objection urged is that the pursuers of the action of constitution had made up no title to the debt. They libelled as a title the post-nuptial marriage-contract of Janet Scott and James Young primus, and it was not, in my opinion, shown that that title was insufficient. James Young primus was the creditor in the bill.”…

The pursuers reclaimed, and argued—That the defenders could obtain no benefit to their title from the positive prescription. The present action was raised within the forty years from the date of the decree of adjudication, although more than twenty years had elapsed since the date of the expiry of the legal. There was no ground for a plea of positive prescription except under the Statute of 1874. By it twenty years was no doubt substituted for forty, but that was in the case only of “ex facie valid irredeemable titles” which this was not. To hold that the 34th sec. applied, would be to convert redeemable into irredeemable titles. The nature of this title was that of a security merely springing out of an adjudication—Ross L. C., vol. i., Land Rights, 147; Cochrane v. Boyle, March 2, 1849, 11 D. 908. If no possession followed upon an adjudication, the right might be lost by the negative prescription— See Anderson v. Nasmyth, 1758, M. 10, 676. This result would not follow if an adjudication gave an absolute title to land. A title by an adjudication remains a redeemable title to land even after the expiry of the legal— Ormiston v. Hill, Feb. 7, 1809. Positive prescription protected rights, but could not be said to change their nature. In a question of prescription you had only to deal with publicly recorded titles. Under this Act of 1617 a redeemable title operated an irredeemable right; this could not take place under the 1874 Act—Ersk. iii. 7, 4. The short prescription of twenty years provided by the 34th section of 1874 Act could not apply in a case like the present, as being a security title, the full forty years was required. There was here a recorded redeemable title; the defender had not possessed for forty years on the adjudication, and therefore the positive prescription was not available.

Additional authorities— Dalzell, January 17, 1810, F.C.; M'Lelland v. Cutter, 1762, 5 Brown's Supp. 893; Spence v. Bruce, 1807, 1 Ross L. C., 206; Buchanan v. Lord Advocate, July 20, 1882, 9 R. 1218.

Argued for respondent—To determine whether the 1874 Act introduced by section 34 a twenty years' prescription in cases like the present, it was necessary to consider the class of case to which the Act of 1617 applied. It applied to an adjudger's title, and the nature of his right was one of property, while he held it; the Act of 1617 did not apply to security titles at all.—See Ross' Leading Cases (L.R), 203. As the Act of 1617 clearly applied to titles by adjudication, so does the Act of 1874, which is simply a continuation of the Act of 1617, and shortens the period of prescription. The Act 1617 gave a title to sue to one who held forty years, though his title was at first redeemable, provided he possessed for forty years; the Act of 1874 did the same, only it shortened the period to twenty years. The intention of the Statute of 1874 was that twenty years' possession, following upon a decree of expiry of the legal, should make the title irredeemable even though that decree was obtained in absence. In 1861, the date of the declarator of expiry of the legal, the right became irredeemable.— Donald v. Nicol, December 12, 1866, 5 Macph. 146.

At advising—