Scottish Court of Session Decisions

This was an action at the instance of Mr John Fraser of Lovat Lodge, 10 Harrington Street, London, against the Right Honourable Simon Joseph Lord Lovat, and the Lord Advocate, concluding for declarator—“ First, it ought and should be found and declared, by decree of the Lords of our Council and Session, that the lands of Lovat, in the counties of Inverness and Ross, were erected into a free barony by Crown charter dated 26th March 1539, granted by our royal predecessor James V. King of Scots in favour of Hugh, fifth Lord Lovat, and the heirs-male of his body, whom failing to his nearest and lawful heirs carrying and bearing the arms, ensign, and surname of Fraser, whom failing to his heirs whomsoever; and that the said destination of the said barony of Lovat has not, since the granting of the said Crown charter, been altered or innovated upon by any person entitled under the said charter to possess the said barony, or by any person lawfully in possession thereof, and deriving his title from or through any person entitled under the said destination to possess the same, or by any person lawfully entitled to alter or innovate on the said destination, and that the said destination has all along been and remains the only ruling and lawful destination under which the said barony and lands of Lovat may be possessed; and further, it ought and should be found and declared by decree foresaid that the pursuer, as the heir-male of the said Hugh, fifth Lord Lovat, is under the said destination the person presently entitled to the said barony and lands of Lovat; and further, it ought and should be found and declared by decree foresaid that on the death of Hugh, the eleventh Lord Lovat, in or about 1696, the succession to the said barony and lands of Lovat, in virtue of the said destination, opened to Thomas Fraser of Beaufort and his heirs-male; that the said Thomas Fraser of Beaufort died in or about 1698 survived by three sons, of whom Alexander, the younger of Beaufort, was the eldest, Simon the second, and John the third; that the said Simon Fraser, commonly known as twelfth Lord Lovat, who possessed the said lands from about the year 1730 to the year 1747, had no just and lawful right and title to the said lands under the said destination, and that during the said period, and until 1776, when he died, the said Alexander Fraser, younger of Beaufort, ancestor of the pursuer, was the person entitled under the said destination to the possession and ownership of the said barony and lands; that on 19th March 1747 the said Simon Fraser, commonly called twelfth Lord Lovat, was convicted of high treason, and that by the Act 20 George II. c. 41, his estates were declared to be forfeited and vested in our royal predecessor George II., and that by the Act 25 George II. c. 41, the estates of the said Simon Fraser, commonly known as twelfth Lord Lovat, were annexed to the imperial Crown of this realm: And further, it ought and should be found and declared by decree foresaid that the estates of the said Alexander Fraser, younger of Beaufort, were not forfeited or annexed to the Crown by the said Acts or otherwise, and that the said Alexander Fraser younger of Beaufort, had full right to enter upon and possess under the said destination the said barony and lands of Lovat after as well as before the said acts of forfeiture and annexation; and that the said acts of forfeiture and annexation only forfeited and annexed to the Crown any estates which the said Simon Fraser, commonly known as twelfth Lord Lovat, did legally possess, and did not forfeit and annex to the Crown the estate in the said barony and lands of Lovat, to which the said Alexander Fraser of Beaufort was entitled, but only such interest in the said barony and lands as the said Simon, Lord Lovat, had at the date of the said' Act of forfeiture: And further, it ought and should be found and declared by decree foresaid that the Crown had no right or title, in virtue of or consequent

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on the said Acts of forfeiture and annexation, to retain possession or in any manner of way to dispose of the said barony and lands of Lovat, except as against the said Simon Fraser, commonly known as twelfth Lord Lovat, and his heirs; and, in particular, that the Crown had no right or title to retain, possess, or in any manner of way to dispose of the said barony and lands of Lovat, to the prejudice of the said Alexander Fraser, younger of Beaufort, or his heirs, and that quoad the said Alexander Fraser, younger of Beaufort, and his heirs, the Crown held and possessed the said barony and lands in trust for them: And further, it ought and should be found and declared, by decree foresaid, that by virtue of the authority granted by the Act 14 George III., cap. 22, the Crown gave, granted, and disponed unto Major-General Simon Fraser, eldest son of the said Simon, known as twelfth Lord Lovat, his heirs and assigns, all and every the lands, lordships, baronies, patronages, tithes, salmon and other fishings, and other like heritages and estates whatever, which became forfeited to our royal predecessor George II. by the attainder of the said Simon, commonly known as twelfth Lord Lovat, and which were annexed to the Imperial Crown of these realms by the said Act 25 Geo. II., in the same manner, as fully and extensively, to all intents and purposes, as the same and every part and parcel thereof was vested in our said royal predecessor George II. by the said attainder, and as the same and every part and parcel thereof were held, enjoyed, and possessed by the said Simon before the said attainder, but subject always to the proviso in the said Act 14 Geo. III., cap. 22, contained, saving to all and every person and persons, bodies politic and corporate, his, her, and their heirs, successors, executors, and administrators, other than and except the King's most excellent Majesty, his heirs and successors, all such estates, rights, titles, interests, claims, and demands of, into, and out of the said lands and premises to be granted as aforesaid, as they, every or any of them, had before the passing of the said Act, or should or might have held or enjoyed, in case the said Act had never been made: And further, it ought and should be found and declared by decree foresaid that under and by virtue of the said Acts the whole rights of the said Alexander Fraser, younger of Beaufort, and his heirs, to the said barony and lands of Lovat, were saved and preserved in perpetuum, and that the pursuer, as heir of the said Alexander Fraser, younger of Beaufort, is now entitled to claim the said barony and lands from the defender, the said Andrew Graham Murray, as representing us as aforesaid: Further, it ought and should be found and declared by decree foresaid that after our royal predecessor George III., in virtue of the powers conferred upon him by the said Act of Parliament 14 Geo. III., cap. 22, had given, granted, and disponed to the said General Simon Fraser the said barony and lands of Lovat, the said General Simon Fraser granted a deed of entail of the said barony and lands in favour of himself and a series of heirs, and made resignation of the said lands unto the person of the Crown, and that by Crown charter, dated 6th August 1774, the Crown granted the said lands to the said General Simon Fraser and the heirs designed by him in the said deed of entail, but subject always to the conditions, provisions, limitations, and exceptions contained, inter alia, in the said Act of Parliament 14 Geo. III., cap. 22: And further, it ought and should be found and declared by decree foresaid that under and by virtue of the terms of the said Crown charter, dated 6th August 1774, the whole rights of the said Alexander Fraser, younger of Beaufort, and his heirs, to the said barony and lands of Lovat, were saved and preserved in perpetuum.: And further, it ought and should be found and declared by decree foresaid that the whole heirs of entail who became possessed of the said lands, under and by virtue of the said deed of entail, possessed the same subject to the whole conditions, provisions, limitations, and exceptions set forth in the said deed of entail and Crown charter following thereon, and more particularly under the conditions contained, inter alia, in the said Act of Parliament 14 Geo. III., cap. 22: Further, it ought and should be found and declared by decree foresaid that Thomas Alexander Fraser, commonly styled Baron Lovat, who was vest and seized of the said lands in 1857, as heir of entail under the said deed of entail granted by General Simon Fraser, had no right or title to possess the said lands except under the said conditions, provisions, limitations, and exceptions set forth in the said deed of entail, and more particularly under the conditions contained, inter alia, in the said Act of Parliament 14 Geo. III. cap. 22, and Crown charter of 1774 above mentioned; and that the said Thomas Alexander Fraser could grant no deed whereby the said lands could be freed and relieved of the said conditions, provisions, limitations and exceptions contained in the said deed of entail by General Simon Fraser, and the Crown charter following thereon, and more particularly of the conditions set forth in the said Act of Parliament 14 Geo. III. cap. 22, and that any dispositions of the said barony and lands of Lovat made by the said Thomas Alexander Fraser were so made under and subject to the conditions, provisions, limitations, and exceptions under which he acquired possession of the lands, and. that the said Thomas Alexander Fraser could not confer upon himself, or any other person through him, any higher or other right to the said lands than he himself had, or was entitled to as aforesaid; and that a deed of entail granted by the said Thomas Alexander Fraser, with consent of the Honourable Simon Fraser, his eldest son, dated 4th and 18th days of August 1857, and recorded in the Books of Council and Session the 2nd day of February 1858, was granted under the conditions, provisions,

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limitations, and exceptions under which the said Thomas Alexander Fraser acquired possession of the said barony and lands of Lovat, and that no heir of entail in possession of the said barony and lands of Lovat, under and by virtue of the said deed of entail by the said Thomas Alexander Fraser, could hold or possess the said barony and lands except under the conditions, provisions, limitations, and exceptions under which the said Thomas Alexander Fraser possessed them himself as aforesaid, and that all heirs of entail in possession of the said lands under the said deed of entail, granted by the said Thomas Alexander Fraser, held and possessed the said lands under the conditions, provisions, limitations, and exceptions contained in the said deed of entail granted by General Simon Fraser, and the Crown charter following thereon, and under the conditions, provisions, limitations, and exceptions contained in the said Act 14 Geo. III. cap. 22: And further, it ought and should be found and declared by decree foresaid that the defender Simon Fraser, Baron Lovat, holds and possesses the said barony and lands of Lovat under and subject to the conditions, provisions, limitations, and exceptions contained in the Crown charter granted to the said General Simon Fraser in 1774, and under the conditions set forth in the said Act of Parliament 14 Geo. III. cap. 22, and that he is bound and obliged to divest himself of the barony and lands of Lovat upon the pursuer making good his right, title, and claim thereto, reserved to him by the said Act of Parliament 14 Geo. III. cap. 22.… his heirs and successors conform to the writs libelled: Secondly and separatim, it ought and should be found and declared, by decree foresaid, that the barony and lands of Lovat are an appanage of the title of Baron Lovat in the Peerage of Scotland, and that the said barony and lands can only be held by the persons legally entitled to the dignity, title, and honour of Baron Lovat in the Peerage of Scotland.”

The pursuer averred that he was descended from Alexander, the elder brother of Simon twelfth Lord Lovat, who had fled to Wales after the battle of Killiecrankie. His averments with regard to his claim to the Lovat estates are fully set out in the conclusions of the summons quoted above, and the sections of the Acts and Crown charter referred to therein are quoted in the opinion of the Lord Ordinary.

The pursuer pleaded—“(1) (c) That the Crown, represented by the defender Andrew Graham Murray, having taken possession of the said barony and lands of Lovat merely in the absence of the rightful owner, Alexander Fraser of Beaufort, and without any title so to do as against him, or in trust for the said Alexander Fraser of Beaufort, ancestor of the pursuer, is now bound to restore the said barony and lands to the pursuer, who is at present entitled thereto. ( d) That the defender Lord Lovat holds the said lands subject always to eviction by any person having a prior claim thereto, and whose rights were saved by the said Statute 14 Geo. III. cap. 22. ( e) That the pursuer's claim and right to the said lands have been preserved by the said statute, and can now been enforced. (2) The defender Lord Lovat and his predecessors having since 1774 held the said lands and barony, subject to a recorded reversion, the said defender is now bound to hand over the said lands and barony to the pursuer, who is in right of the said reversion.”

The defender, the Lord Advocate, pleaded—“(2) The action as directed against this defender is irrelevant.”

The defender Lord Lovat denied all the pursuer's material allegations both of fact and with reference to title, and averred that he and his ancestors had possessed the lands continuously and without interruption, save during the period of forfeiture, from the year 1738 to the present time, upon certain specified titles and infeftments. The defender himself held upon a decree of special and general service in his favour as heir of entail to his father dated 1887, while his father's title was a decree of special service dated 1875.

Both these decrees bore to be granted, “but always with and under the conditions, provisions, declarations, prohibitions, reservations, and exceptions and clause authorising registration in the Register of Tailzies, contained in a deed of entail granted by the said Thomas Alexander, Baron Lovat, with consent of the said Simon, Baron Lovat, therein named and designed the Honourable Simon Fraser, his eldest son, dated the 4th and 18th days of August 1867.”

The deed of entail of 1857 contained the statement that it was granted, “but always with and under the conditions, provisions, declarations, prohibitions, reservations, and exceptions, and real burdens and clause of registration in the Register of Entails underwritten.”

It also contained in the clause descriptive of the lands conveyed the following sentence:—“ Primo”—[ Here follows a description of the lands, lordship, and barony of Lovat]—“Conform to a charter of novodamus under the Great Seal in favour of the deceased Lieutenant-General Simon Fraser, dated the 13th day of April 1774, by which charter the lands and others foresaid are erected and incorporated into one free barony,”

The defender pleaded—(5) Esto that the said Alexander Fraser of Beaufort was alive and entitled to the said estates in the year 1747, his right thereto and the right of all persons claiming through him were extinguished by section 22 of the Act 20 Geo. II. cap. 41. (6) The defender is entitled to absolvitor in respect of his titles and the possession of the said estates, had thereon by himself and his predecessors for more than the prescriptive period.

The Lord Ordinary ( Low) on 16th November 1897 pronounced the following interlocutor:—“Sustains the sixth

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plea-in-law stated for the defender Lord Lovat, and assoilzies him from the conclusions of the summons, and decerns: Sustains the second plea-in-law for the defender the Lord Advocate, and dismisses the action quoad him, and decerns: Finds the said defenders entitled to expenses,” …c.

Opinion.—“It appears to me to be clear that the title of the defender Lord Lovat is protected against challenge by the positive prescription, unless the pursuer's argument is well-founded, that since 1774 Lord Lovat and his predecessors have held the estates subject to a statutory provision saving the rights of any person who at that date had a claim to the estates, which provision prevented prescription running against those in right of such claim.

I shall state briefly the grounds upon which the pursuer's contention is rested.

In 1745 the Lovat estates were possessed by Simon Fraser, the twelfth Lord Lovat. He was implicated in the rebellion of that year, and his estates were forfeited and he himself executed in 1747. In 1774 an Act of Parliament (14 George III. cap. 22) was passed ‘to enable his Majesty to grant unto Major-General Simon Fraser the lands and estate of the late Simon Lord Lovat upon certain terms and conditions.’

Major-General Fraser was the eldest son of Simon Lord Lovat, and the Act proceeded upon the narrative that ever since he was capable of acting for himself he had testified his loyalty, and had done good service in the army. It was accordingly enacted that ‘it shall and may be lawful to his Majesty, his heirs and successors, to give, grant, and dispone unto the said Major-General Simon Fraser, his heirs and assigns, all and every the lands,’ …c., ‘which became forfeited to his said late Majesty by the attainder of the said Simon, late Lord Lovat, and which were annexed to the Imperial Crown of these realms.’

The Act concludes with the saving clause upon which the pursuer founds, and which is in these terms:—‘Saving to all, and every person and persons, bodies politick and corporate, his, her, and their heirs, successors, executors and administrators (other than and except the King's most excellent Majesty, his heirs and successors) all such estates, rights, titles, interests, claims and demands of, into, and out of, the lands and premises to be granted aforesaid, as they, every or any of them, had before the passing of this Act, or should or might have held or enjoyed in case this Act had never been made.’

In pursuance of the Act a Crown charter of novodamus, dated 13th April 1774, was granted to General Fraser. By it the King disponed, ‘prsedilecto Simoni Fraser ejusq. hæredibus et assignatis quibuscunq. hæredi-farie et irredima biliter, absq. ullo regressu, reversione, seu redemptione qualicunque,’ the lands, lordships, and so forth, which became forfeited to the Crown by the attainder of the said Simon Lord Lovat, and specially and without prejudice to the said generality, the lands and Barony of Lovat and other lands which were particularly described. There was no saving clause such as that in the Act of Parliament incorporated in the charter, but the Act was referred to in the narrative of the charter.

General Fraser took infeftment on the charter conform to instrument of sasine dated 30th September and recorded in the Register of Sasines 1st November 1774, and the lands in which he was thus infeft have (so far as they have not been alienated) descended by a regular series of titles to the present Lord Lovat.

The pursuer's case is based upon the averment that Simon, twelfth Lord Lovat, had no right to the estates. Hugh, the eleventh Lord Lovat, died in 1696 without male issue, and Thomas of Beaufort was his heir-male and as such was entitled to the estates. Thomas, however, made up no title to the estates, and died in 1698. He was survived by three sons, Alexander, Simon, and John. Simon obtained possession of the estates and was infeft therein about 1730 on, as the pursuer alleges, the false and fraudulent representation that he was the eldest son of Thomas of Beaufort. The pursuer avers that Simon was not the eldest surviving son of Thomas, but that his elder brother Alexander, who had fled to Wales after the battle of Killiecrankie in 1689, lived until 1776 and left lawful issue. The pursuer claims to be the heir-male of Alexander, and through him of Thomas of Beaufort and of the eleventh Lord Lovat.

The pursuer's argument is that under the Acts of Parliament dealing with the estates of persons attainted for complicity in the rebellion of 1745, there was only forfeited to the Crown such rights as the traitor truly had, and that Simon, twelfth Lord Lovat, not having right to the estates, they were not vested in or annexed to the Crown. It was to provide for such a case, inter alia, that the saving clause was inserted in the Act authorising the estates to be conveyed to Major-General Fraser.

I think that it is the case that estates were forfeited subject to all lawful burdens and claims, because the Act made careful provision for the ascertainment and payment of debts and burdens, and for the trial of any claims to a forfeited estate, and I shall assume, in the meantime, that the saving clause founded on was intended to reserve the right of any person having a claim to or against the estates authorised to be granted to General Fraser.

But I do not think that that aids the pursuer, because the defender, Lord Lovat, has produced a good prescriptive title. Thus in 1875 the noble defender's father, Simon Baron Lovat, succeeded to the estates and made up his title by decree of special service dated 25th September, and recorded in the General Register of Sasines 21st October 1875, as nearest and lawful heir of tailzie and provision in special to his deceased father, who was found to be last vest and seised in the estates.

In like manner, when Simon, Lord Lovat, died in 1887, the noble defender obtained decree of special service as nearest and lawful heir of tailzie and provision to him, which was duly recorded.

It seems to me that these two infeftments constitute a perfectly good prescriptive title, and that it is incompetent to go

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behind them and inquire into the origin and previous history of the title.

Even if the infeftments since 1875 were not sufficient, it would only be necessary to go further back to get a prescriptive title.

Take, for example, the charter of 1774, which, as I have said, was an absolute grant of the lands to Major-General Fraser and his heirs and assignees whomsoever. Forty years' possession upon that charter and the infeftments following thereon plainly constitute a prescriptive title.

In order to get the better of the prescriptive title the pursuer would require to shew that the meaning and effect of the saving clause in the Act of 1774 was that so long as the estates descended to heirs the operation of the positive prescription was suspended as regarded any claims which could have been made to the estates in 1774, or in other words, that to that extent the Act of 1617, c. 12. was repealed. It seems to me to be impossible to put any such construction on the clause. Further, I think that this case is ruled by the Cromarty case— Glassford v. Mackenzie, 7 S. 423—in which practically the same question was raised.

That is sufficient for the decision of the case, but I think that it is right to express my opinion that the pursuer's argument proceeded upon a misapprehension of the meaning and effect of the saving clause in the Act of 1774. By that clause the rights which any person had in regard to the lands before the passing of the Act, or would have had if the Act had not been passed, were saved. Now, it seems to me that an examination of the Vesting and Annexing Acts shews that at the time of the passing of the Act of 1774 Alexander Fraser (who the pursuer says was then alive) could not have claimed the estates upon the ground upon which the pursuer now claims them.

The Vesting Act (20 George II. c. 41) was passed in 1747, and by it the whole estates, heritable and moveable, belonging to persons attainted, or who should be attainted, of high treason, between the 24th June 1745 and 24th June 1748, were vested in the Crown. The carrying out of the Act was entrusted to the Barons of Exchequer, who were given large powers for the discovery of means or estate which might be concealed.

In order that any person having an interest in a forfeited estate might make good any claims which they had, it was provided that the Barons of Exchequer should cause a register to be kept in which the names of all persons attainted should be entered, and also all their means and estate.

It was also provided by section 22 that any person having a claim to or against a forfeited estate should enter his claim before the Court of Session within three months of the entry of the estate in the Register if the estate was personal, and within six months if it was real, and it was declared that a claim which was not so made should be ‘null and void to all intents and purposes whatsoever,’ and that the estate should be ‘freed, acquitted, and discharged of and from the same.’

The pursuer argued that the declaration of nullity of a claim which was not made within the prescribed time only applied to claims in respect of debts affecting the estate, and not to claims to the estate itself. I do not think that argument is tenable. In the first place, it is declared by section 19 that all estates ‘to which no claim shall be entered within the time and in the manner hereinafter prescribed, shall be deemed and taken against all persons, and to all intents and purposes to be vested in His Majesty in virtue of this Act.’ In the second place, the 22nd section is followed by provisions of the procedure to be adopted by the Court of Session in adjudicating upon claims. It is then provided (sec. 25) that if a claim held to be just and lawful should contain a demand of a sum of money affecting the estate, the Barons of Exchequer should issue debentures or certificates upon which the Receiver-General should pay the sum found due. Further, it was enacted (section 27) ‘that where the said claim shall contain a demand of any honours, castles, manors, lands, tenements … or other real estate whatsoever, and shall be adjudged, determined, or decreed as aforesaid to be just and lawful, then and in that case the said Court of Session are hereby authorised to order the Sheriff or Sheriffs … to cause possession to be delivered to such claimant or claimants.’ “The annexing Act (25 Geo. II. cap. 41) was passed in 1752. It annexes inalienably to the Crown from and after the 25th December 1752 the estates which became forfeited by the attainder of, inter alia, Simon late Lord Lovat.

There was a saving clause by which it was provided that nothing in the Act should extend ‘to take away any right, title, or benefit whatsoever which any person or persons are, shall, or may be entitled to in virtue of any claim or claims that have been or shall be duly entered in the Court of Session in Scotland pursuant to the aforesaid Act (the vesting Act), or in virtue of any decree or decrees that hath been or shall be made upon such claims.”

“The explanation of the reference in that clause to claims which may be made in the future appears to me to be that means and estate belonging to the attainted persons named might still be discovered, when such estate would fall to be entered in the Register, and claims could then be made to it within three or six months thereafter as the case might be.

Then there followed the Act of 1774, and it seems to me that the saving clause in that Act had just the same scope as the saving clause in the annexing Act, and that while it would save all claims to means or estate which might afterwards be discovered, or claims which were not finally settled, it did not save a claim to estate previously discovered and registered which had not been lodged within the time prescribed by the vesting Act,

The pursuer's counsel pointed out that he denied that the Lovat estates had been

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duly entered in the Register. The defenders aver that the estates were registered, and that no claim was made to them, and the pursuer denies that averment. But that, in my opinion, is not sufficient. The presumption is that the provisions of the vesting Act were carried out, especially in regard to so important an estate as that of Lovat, and if the pursuer desired to maintain that Alexander of Beaufort never had an opportunity to make his claim because the estates were not registered, he was bound to make a specific averment to that effect.

The pursuer not only claims the estate on the grounds which I have considered, but the summons contains a separate conclusion for declarator, ‘that the barony and lands of Lovat are an appanage of the title of Baron Lovat in the peerage of Scotland, and that the said barony and lands can only be held by the persons legally entitled’ to that peerage; and further, that it should be declared ‘that on its being found by a competent tribunal that the pursuer as the heir-male of the said Hugh, fifth Lord Lovat, is entitled to the peerage, the pursuer as Baron Lovat is entitled to own and possess the said barony and lands of Lovat.’

The pursuer avers that the title of Baron Lovat was not created by patent, but that the pursuer's ancestors who held that title sat as Lords of Parliament in the Scottish Parliament, and that the lands and barony of Lovat were bestowed upon them by the Crown as an appanage of their title.

Now, the original charter of the lands (upon which the pursuer founds) was a Crown charter of resignation, dated 26th March 1539, in favour Hugh, fifth Lord Lovat, whereby the lands then possessed by him were erected into the barony of Lovat. By the dispositive clause the lands were disponed to Hugh, Lord Lovat, and the heirs-male of his body, whom failing, to his nearest and lawful heirs-male whomsoever. The lands, therefore, have since 1539 been held under an ordinary feudal title, and there is no room for holding them to be a mere appanage to the title, assuming that such a state of matters is known to the law of Scotland.

But further, in 1884 the pursuer claimed the peerage of Lovat, and the finding of the Committee of Privileges and of the House of Lords was, that ‘John Fraser has no right to the title, dignity, and honours claimed in his petition.’ That finding appears to me to be destructive of a claim founded upon the assumption that the pursuer is Lord Lovat.

In so far as the action is directed against Lord Lovat, I shall sustain the sixth plea-in-law stated for him, and grant decree of absolvitor. As regards the Lord Advocate, I do not think that any relative case is stated for calling the Crown as a party, and I shall therefore sustain the second plea-in-law for the Lord Advocate, and dismiss the action so far as he is concerned.”

The pursuer reclaimed and argued—(1) On Prescription—No doubt by the ordinary law of prescription, possession upon an ex facie valid irredeemable title for 20 years would preclude inquiry further back than that period. That rule applied where there was nothing in the titles to suggest any qualification, and the effect was that there could be no extrinsic ground of attack— Munro v. Munro, May 19, 1812, 16 F.C. 568. Here, however, there was a course of references back from the 20 years' titles and intrinsic of them, and accordingly the reclaimer was entitled to scrutinise the older titles. If by reference in the new, and by direct expression in the old titles, he could prove that these subjects were not included in the titles, then he would simply be going outside the titles to ascertain the extent of the subjects and not the nature of the right, and it was only the latter and not the former investigation that was barred by prescription. There was in the decrees of service a distinct qualification of the respondent's title, the right being said to be “under the conditions, provisions, &c.,” contained in the deed of entail of 1857. The effect of that reference was the same as if all these conditions had been inserted in the decrees. But on turning to the deed of entail there was found—besides the clause containing the conditions of entail, a reference to the charter of novodamus of 1774—the words “conform to,” not being merely for local description, but being equivalent to a condition. It was said that the defender had no need to produce the old charters, and that it was enough for him to produce these decrees of service. But however that might be, as he had chosen to found a further defence upon the old charters the pursuer was entitled to look at them. On turning to the charter of 1774, the question naturally arose “Did the lands dealt with by the Acts actually belong to Simon?” and if they did not, the Acts never applied at all. Accordingly, it was impossible to sustain a plea of prescription when the titles contained such qualifications as did these. (2) The Act of 1774, which enabled the Crown to grant the lands forfeited by Lord Lovat to General Fraser, contained a saving clause intended to apply to just such cases as this, and if it could be shown that Simon had not been the owner of the lands forfeited, and that the Crown had taken by mistake the lands belonging to Alexander, the result would be that the lands had been held in trust for the true owner, to whose heirs they must accordingly be restored. Accordingly, so long as the estates descended to the disponee of the Crown, and had not gone to onerous disponees, the operation of positive prescription was suspended. It was not unreasonable to hold that for the purposes of this Special Act the Act of 1617 was suspended. At the date of the passing of the last named Act there already existed an Act dealing with forfeitures for treason, so it might very well be that it was not intended to apply to such cases at all. There were circumstances in the case of Glassford v. Mackenzie, February 17, 1829, 7 S. 423, which was

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said to rule this case, and was certainly somewhat analogous, which differentiated it. There were analagous cases showing that prescription would not apply to property held in trust for another— Magistrates of Aberdeen v. University of Aberdeen, March 23, 1877, 4 R. (H. of L.) 48; see also Heritable Reversionary Company v. Millar, August 9, 1892, 9 R. (H. of L.) 43; Fleeming v. Howden, July 16, 1868, 6 M. (H. of L.) 113. Moreover the Crown grant contained a limitation as to its own rights, for it did not merely contain a specific conveyance of certain lands, as in the case of the Duke of Buccleugh, cited by the respondent, but limited the grant to what was possessed by Simon, and accordingly it was quite competent to go outside the grant and ascertain what it had the power to grant, just as in a bounding charter— Orr v. Mitchell, March 20, 1893, 20 R. (H. of L.) 27; Mackintosh v. Abinger, July 12, 1877, 4 R. 1069. (3) It was said that Alexander himself had forfeited his right under section 22 of the Vesting Act, because he had not put forward a claim within six months, but the penalty in that clause applied only to claims in respect of debts, and not to claims to the estate itself. Penal statutes must always be construed strictly. The words in the clause describing the class of persons having a claim to estates seized on behalf of the Crown were taken from the Act 5 George I. cap. 22, but the corresponding words of penalty were not incorporated. It was not equitable to read in the penalty by implication as applying to both classes of claimants, for that would be equivalent to shortening the prescriptive period, in which a claimant would lose his right to an estate, to six months. This distinction was quite reasonable, since the creditor claimed through the attainted person, while the claimant to the estate had no connection with the treason, and it might be expected that the effects of the forfeiture would not be extended beyond the attainted person— Lord Advocate v. Gordon, 1751, 1 Pat. App. 508; Earl of Perth v. Willoughby de Eresby's Trustees, March 9, 1875, 2 R. 538 (at 565), December 13, 1877, 5 R. (R. of L.) 26. But on the facts it was not the case that the Lovat estates had ever been entered on the register, and so the section did not apply. (4) There was here a registered reversion in the sense of the Act 1617, cap. 12, which was accordingly saved from prescription. The references to the qualifications and limitations contained in the Crown grant, which appeared in the registered titles did amount to such a reservation, the essence of it being that there was an obligation on the person having the apparent ownership of property to restore it to the true owner. Such a reversion was saved both from negative and positive prescription—Bell's Pr. sec. 2008; Erskine, iii, 7, 10.

Argued for respondent—It was a sufficient answer to the claim of the reclaimer to produce the decrees of service in favour of the respondent and his father, and state that there has been possession on these titles for twenty years. They certainly constituted an “ ex facie valid irredeemable title” in the words of. section 34 of the Conveyancing Act 1874, and there was no occasion or right to go behind them. The case of Munro v. Munro, supra, was directly in point. Even if the prior titles had been narrated in gremio of the titles founded on, inquiry as to their validity was excluded. Even if the respondent, going beyond what was required of him, produced old titles, they could do him no harm, though they were proved to be null and void, since the purpose of prescription was to remedy bad and not good titles— Scott v. Bruce Stewart, 1779, M. 13, 519, Ross's Leading Cases, iii, 334; Duke of Buccleugh v. Cunnynghame, 1826, Ross's Leading Cases, iii. 338; Lord Advocate v. Graham, December 10, 1844, 7 D. 183; Forbes v. Livingston, 1822, 1 S. 282, 1825, 1 W. … S. 687, 1827, 6 S. 167. As to the reference contained in these decrees to the deed of entail of 1857, if that deed were looked at it was perfectly clear that the conditions, prohibitions, …c. referred to were nothing more or less than the conditions, …c. of an entail, the sole effect being to make the respondent an heir of entail in possession instead of a proprietor in fee-simple. But even if the reference enabled the reclaimer to go back and trace the history of the former title, and show that it had its origin in a grant of forfeited lands, he was expressly precluded from this very thing by the prescription upon which the respondent founded. And accordingly, assuming that there was the nullity which the reclaimer wished to establish, it would be of no avail to him. 2. But if the pursuer was entitled to look at the charter of 1774, he had no case upon the merits. It was true that it did contain a reference to the Act, but it was merely for the purpose of showing that that Act had been passed to enable the Grown to give out what the previous Act had annexed to the Crown. The words used in describing the grant were merely ordinary dispositive words, and were not intended to create any qualification. But even going back to the Act of 1774, the saving clause did no more than the saving clause in the annexing Act; it did not save a claim to estate previously discovered and registered, which had not been lodged within the time prescribed by section 22 of the vesting Act. The penalty for failure to lodge such a claim applied to claims in respect of the estate as well as to claims for debts affecting it, and accordingly if Alexander ever had any rights he lost them by failing to come forward. The point was absolutely settled by the case of Glassford v. Mackenzie, which was precisely analogous. 3. As to the saving of a “recorded reversion,” in point of fact the pursuer did not allege any reversionary right at all, but maintained that he had a right of property. Nor would it avail him against the prescription founded upon even if he had such a right— Monro v. Monro, supra; Scott v. Bruce Stewart, supra.

At advising—