Scottish Court of Session Decisions

By trust-disposition and settlement dated 8th December 1836, David Melville disponed to trustees his whole estate, heritable and

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moveable, for the purposes therein mentioned. These purposes included, inter alia, the following—In the seventh place, that my said trustees, acceptors or acceptor, survivors or survivor of them, the major number accepting and surviving being aquorum, shall, so soon as they see fit, give, grant, and dispone to and in favour of the said Mrs Martha Melville or Simpson and Mrs Catherine Melville or King [his daughters], equally between them in liferent, for their liferent use respectively, allenarly, and in the event of any one of them deceasing without leaving lawful issue of her body, the share of deceased to be given and disponed and to belong to the daughter surviving in liferent for her liferent use allenarly, but excluding the jus mariti of her present husband or any future husband she may marry, and to the said Catherine Melville Simpson and John King, my grandchildren lawfully born, and other grandchildren to be lawfully born, by my said two daughters of their present or any future marriage, equally among them, share and share alike, any of whom failing the share or shares of the deceaser or deceasers to the survivors equally among them, share and share alike, my whole heritable subjects and estates before described in fee.”

By codicil dated 11th April 1843 Mr Melville made, inter alia, the following alteration on his trust-disposition—“Eighth, I hereby alter the disposal of the property belonging to me in Helensburgh as provided for in my deed of settlement, and direct my trustees on my death to dispone and convey the same to my daughters before mentioned equally between them in liferent for their liferent alimentary use allenarly, exclusive of the jus mariti and right of administration of their husbands, present and future, and to the issue of my said daughters equally between them per stirpes in fee, the shares falling to the issue of each daughter to be equally divided among them, and the shares of such of them as may be females to be exclusive of the jus mariti and right of administration of their husbands.” The codicil contained a precept of sasine.

Mr Melville died on 30th September 1845, survived by his daughters Mrs Simpson and Mrs King.

Mrs Simpson died on 1st December 1886. She had the following family— (1) Mrs Catherine Melville Simpson or Marshall; (2) Mrs Margaret Simpson or Fraser; (3) David Melville Simpson, born 28th April 1838 and died 6th August 1882 intestate, survived by his eldest son David Melville Simpson; (4) Alexander Simpson, born 12th April 1845, died July 1853 intestate and without issue; (5) John Simpson, born 11th April 1848, died 11th April 1886, leaving a general settlement of his estate in favour of his widow Mrs Jeanie M'Innes or Simpson, afterwards Howarth.

After Mr Melville's death the trustees continued to manage the trust-estate, and, inter alia, the property at Helensburgh. By disposition and assignation dated 17th and 22nd April 1868 the trustees, on the narrative of the provisions of the trust-disposition and settlement and the codicil, assigned to Mrs Simpson in liferent for her liferent use allenarly, and to her children Catherine Melville Simpson, Mrs Margaret Simpson or Fraser, David Melville Simpson, and John Simpson, equally among them, share and share alike, and their heirs and assignees, heritably and irredeemably in fee to the extent of one just and equal half pro indiviso the said codicil by which Mr Melville had conveyed to them the property in Helensburgh. The disponees under this disposition and assignation obtained themselves infeft for their respective rights of liferent and fee, conform to notarial instrument recorded 7th May 1868. This notarial instrument had an unattested indorsement on the back stating that it had been delivered to the keeper of the register for registration between ten and eleven o'clock on that date.

On the death of Mrs Simpson on 1st December 1886, David Melville Simpson, as son of his deceased father David Melville Simpson, claimed to be in right of two-fifth shares of the one-half of the Helensburgh property which had been liferented by Mrs Simpson, and claimed from the trustees two-fifths of the annual rents thereof, and his claim as minuted at a meeting of the trustees on 20th July 1887 was disputed by Mrs Catherine Simpson or Marshall, Mrs Margaret Simpson or Fraser, and Mrs Jeanie M'Innes or Simpson (afterwards Howarth). Pending the settlement of the dispute the trustees (of whom John King after mentioned was one), with the consent and approval of all the parties interested, by minute of meeting dated 22nd December 1888, instructed their factor to pay periodically one-fifth of the rents to each of Mrs Catherine Melville Simpson or Marshall, Mrs Margaret Simpson or Fraser, Mrs Jeanie M'Innes or Simpson (afterwards Howarth), and David Melville Simpson, and to retain the remaining fifth in his own hands. After 30th December 1888 the factor for the trustees managed the property and disposed of the rents in terms of these instructions.

In May 1898 David Melville Simpson raised an action against Mrs Marshall, Mrs Fraser, Mrs Jeannie M'Innes or Simpson or Howarth, John King, and David Melville's trustees, in which he sought reduction of (1) the disposition and assignation of April 1868 ; (2) the notarial instrument following thereon ; (3) a notarial instrument recorded 3rd February 1896, by which Mrs Howarth was infeft in the one-fourth share of the half of the Helensburgh property formerly liferented by Mrs Simpson, of which Mrs Howarth's first husband John Simpson, ex facie of the disposition and assignation and notarial instrument above referred to, was proprietor; and (4) a disposition dated 13th January 1896, by which Mrs Howarth conveyed the said share to John King. The summons was served, according to the statement of the pursuer, between 2 and 3 p.m. on 7th May 1898, and according to the statement of defenders about 9 p.m. on same date.

Mrs Marshall, Mrs Fraser, and John

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King lodged preliminary defences that they were entitled to absolvitor as they had possessed the property in dispute by themselves, their authors and predecessors, on an ex facie valid irredeemable title for more than the prescriptive period.

On 1st March 1889 the Lord Ordinary ( Stormonth Darling) repelled the preliminary defences and allowed the defenders to satisfy production within eight days.

Opinion.—“This is a question arising on preliminary defences. The pursuer seeks to reduce (1) a disposition and assignation granted on 17th and 22nd April 1868 by the trustees acting under the trust-disposition and settlement of the late David Melville, merchant in Greenock; and (2) a notarial instrument following thereon, recorded in the Register of Sasines on 7th May 1868. Reduction is also asked of two later deeds, but they are merely consequential on these I have mentioned. The reason stated for reduction is that the disposition by the trustees did not properly carry out the directions of the settlement under which it bore to be granted, inasmuch as it conveyed one-half of the property to one of the testator's daughters in liferent, and to her four children alive at the date in fee, ignoring the fact that another of her children had survived the testator, but had died before the date of the disposition, and that his right had passed under the law of conquest to his elder brother, who is now represented by the pursuer.

“The only plea stated against satisfying the production, and therefore the only plea with which I have here to deal, is that of the positive prescription. It is that between 7th May 1868 and 7th May 1898 the defenders had peaceable possession of their respective shares of the property on an ex facie valid irredeemable title for the space of thirty years continually and together, that being the maximum period prescribed by section 34 of the Conveyancing Act of 1874 in cases where allowance has to be made for the minority of those against whom the prescription is used and objected. Further, it is said that this period began to run at 11 o'clock a.m. on 7th May 1868, when the notarial instrument was recorded ; that it expired at the same hour on 7th May 1898, and consequently that the serving of this summons, which did not take place till between the hours of 2 and 3 p.m. on 7th May 1898, was ineffectual as a lawful interruption of the period. If the maxim dies inceptus pro completo habetur were held to apply, the plea of prescription would prevail, because the thirty years would be reckoned as complete on the morning of 7th May 1898. To some favourable cases that maxim did apply, as when the tocher depended on the endurance of a marriage for year and day ( Waddell, M. 3465). There are other cases to which it might still apply. But it is not of universal application, and it has no place in the law of prescription. There the rule, as stated by Erskine (iii. 7, 30), is, ‘Prescription runs de momento in momentum,’ and again— ‘The years of prescription must be fully completed before any right can be either acquired or lost by it, so that interruption made on the last day of the fortieth year will break its course.’ Now, what is the last day of the fortieth year ? Is it the last period of twenty-four hours necessary to complete forty, or thirty, or twenty years (as the case may be), reckoning from the hour at which the act happened which constituted the terminus a quo, or is it the day of the month of the last year which is of the same numerical denomination as the day of the month of the year in which the computation commenced ? I think it is the latter. I acknowledge the force of the argument that here, as it happens, we know the very hour of infeftment, because it is noted on the instrument of sasine, and we also know the very hour of serving the summons through the post, because it is mentioned in the execution appended to the summons. But when a period of time is expressed by years the law does not attempt to parcel out the period into so many equal divisions of three hundred and sixty-five days and six hours each ; it is content with the more rough and ready plan of taking the day in the last year corresponding to the day in the first regardless of leap years. The same rule applies to computations by months—thus when a bill payable one month after date is dated January 30th or 31st, the period is not carried into March, but expires on the last day of February. Accordingly, in cases of computation by months or years, and generally even by days, no note is taken of the hour of the first day at which the determining act is done; the time runs from midnight to midnight, or in other words, the day which forms the terminus a quo is thrown out of the calculation. That is the rule of computation in all matters of judicial procedure ( e.g., A.S., 16th February 1841, sec. 44; and Ashley v. Magistrates of Rothesay, 11 Macph. 709). It was also the rule under the old law, which required an instrument of sasine to be recorded within sixty days of the taking of sasine. There the hours of the two acts were noted just as they are here. But in the case of Lindsay v. Giles, 6 D. 771, where it appeared that sasine was taken between the hours of 11 and 12 o'clock, and the instrument was not recorded till between the hours of three and four on the sixtieth day thereafter, the recording was nevertheless held good. It is noteworthy that the Act 1617, c. 12, describes the years of prescription as ‘following’ and ensuing the date ‘of their said infeftments.’ Now, the word ‘date’ is much more commonly descriptive of a day than of any smaller division of time. It was further argued for the defender King that the summons in this case could not be held to have been served until 8th May, because the Citation Amendment Act of 1882, which permitted service by post, provided that the induciæ should not begin to run for twenty-four hours after the time of posting. But the Act also provides ‘that the posting shall constitute a legal and valid citation,’ and accordingly it was held in Alston v. Macdougall, 15 R. 78, that the defender was cited when the posting took place.

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“I therefore hold that prescription was validly interrupted, and I shall repel the preliminary defences.”

The defender appealed, and on 14th March the Second Division of the Court pronounced the following interlocutor:— “Recal the said interlocutor reclaimed against: Reserve the preliminary defences to be dealt with along with the defences on the merits: Allow the defender to satisfy the production within eight days, and remit the cause to the said Lord Ordinary to proceed as accords.”

A record was made up on the merits.

The parties lodged a joint-minute of admissions which obviated the necessity for a proof.

On 3rd November the Lord Ordinary reduced, decerned, and declared as against the compearing defenders in terms of the conclusions of the summons.

Opinion.—“This action of reduction relates to the fee of one-half of certain heritable subjects in Helensburgh which belonged to David Melville, merchant in Greenock, and the case for the pursuer is that the titles made up since Mr Melville's death ought to be set aside because they do not properly carry out intentions of that gentleman as expressed in his settlement. Under the titles as they stand the pursuer has one-fourth of one-half of the property, but he says that he ought to have two-fifths of one-half.

“Defences were lodged against satisfying production. These were founded on the plea of positive prescription, and the argument presented to me at that stage of the case was limited to the question whether prescription had been timeously interrupted by the serving of the present summons. In point of time it was a very fine question, turning on the lapse of a few hours, but I decided that interruption had been validly made. When the case went to the Second Division their Lordships seem to have thought that it would be more satisfactory before deciding anything to have a record made up on the merits, and accordingly appointed that to be done, reserving the effect of the preliminary defences. The case having come back to me, I allowed a proof, but the parties have obviated the necessity of that by agreeing on a minute of admissions. These relate chiefly to the facts of possession as bearing on the plea of prescription, and I think they afford a ground for disposing of that plea apart from the question of computation of time on which I formerly proceeded. But it may conduce to clearness if I invert the natural order, and deal first with the question whether the titles as they stand give proper effect to the will of the testator. Mr Melville died so long ago as 1845, survived by two daughters, Mrs Simpson and Mrs King, each of whom had issue. Mrs Simpson's family, with which alone we are concerned, consisted at her father's death of two daughters and two sons, but another son was born subsequently. The two daughters survive and are defenders. The sons are all dead. The pursuer is the heir of one of these, who was his father, and of another who died without issue in 1853. The post natus is represented by the defender King. By the seventh purpose of his principal settlement (taking it shortly) Mr Melville directed his trustees, so soon as they should see fit, to dispone to his two daughters equally in liferent for their liferent use allenarly, and to two of his grandchildren nominatim (these being the only grandchildren then born), and other grandchildren to be born lawfully by his said two daughters, of their present or any future marriage, equally among them, share and share alike, and to the survivors, his whole heritable estates. But the eighth purpose of his codicil ran thus— ‘I hereby alter the disposal of the property belonging to me in Helensburgh as provided for in my deed of settlement, and direct my trustees on my death to dispone and convey the same to my daughters before mentioned, equally between them in liferent for their liferent alimentary use allenarly, exclusive of the jus mariti and right of administration of their husbands, present and future, and to the issue of my said daughters equally between them per stirpes in fee, the shares falling to the issue of each daughter to be equally divided among them, and the shares of such of them as may be females to be exclusive of the jus mariti and right of administration of their husbands.’ By another clause of the same codicil he revoked the provisions of his deed of settlement in so far as inconsistent with the provisions of the codicil, but in so far as not inconsistent he ratified and confirmed the same. Now, these two destinations, I think, differed in two particulars, and in two only. The conveyance directed by the codicil was to be made on the testator's death instead of being so soon as his trustees might see fit: and the division of the fee among the grandchildren was to be made per stirpes instead of being per capita. I see no ground for holding that by the abbreviated but comprehensive expression ‘the issue of my said daughters,’ he intended to abrogate the express provision in his principal settlement in favour of children to be afterwards born, and to confine the benefit to those who should be alive at his death. If I am right in that it is unnecessary to say more. But I do not think that cases like Wood, 23 D. 338, and Ross, 5 R. 833, which relate to pecuniary legacies payable to a class of children at the death of a liferenter or annuitant, have any application. The principle of these cases is that in the absence of evidence of a contrary intention a testator must be presumed to have meant the children in existence when distribution was to be made. But a direction to convey a heritable subject to a parent in liferent allenarly, and to his or her issue in fee, is not like a direction to pay money to a family of children on the death of the parent. The enjoyment of the gift in the former case is necessarily suspended till the whole possible family is ascertained at the death of the parent, and the rules of conveyancing are satisfied by the creation of a fiduciary fee, which may include future as well as present children.

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I cannot therefore agree with the argument for the female defenders that the conveyance ought to have excluded John Simpson, the post natus. Now that is the only ground on which it can be maintained that the division was rightly made into four parts or shares. If each of the Simpson children was entitled to participate, there were five of them, and the pursuer, as admittedly representing two of these five, is entitled to two-fifths. The duty of the trustees was not to wait till 1868 and then to convey to four persons nominatim, but to convey in 1845 in the precise terms of the codicil.

Next, I turn to the defence of prescription. I adhere to my former opinion as to its having been validly interrupted, but I find on the admitted facts a fresh ground for repelling the plea. I do not, however, agree with that part of the pursuer's argument which impugns the title as ex facie insufficient to found prescription. No doubt you must have infeftment and its warrant. The warrant in this case consists not only of the so-called disposition and assignation by the trustees (which, however, contains no dispositive words, and was only an assignation), but also of Mr Melville's settlement and codicil; all of these are set out in the notarial instrument. It is also true that, if you carefully compare the testamentary deeds with the assignation, you may arrive at the conclusion that the latter deed has not given proper effect to the former. But you cannot reach that conclusion without a knowledge of extrinsic facts. The four persons named in the assignation might have been the whole children Mrs Simpson ever had, in which case there would have been nothing wrong, at least nothing that anybody would have had an interest to complain of. Now, the case of Buccleuch, 5 S. 57; Forbes, 6 S. 167; and Lovat, 25 R. 603, all show that a title may be good as a foundation for prescription, even when it bears evidence in gremio of an objection, the full ground of which has to be collected extraneously.

But the plea of prescription requires not only title but possession, and the point on which I do agree with the pursuer is, that the defenders have not had possession for the requisite period, which in the present case means thirty years from 7th May 1868, when the notarial instrument was recorded. It is admitted that on the death of the liferentrix on 1st December 1886 the pursuer put forward his present claim. that I admit would not have been enough to oust the defenders from the only kind of possession possible in the case of property not personally occupied, i.e., the enjoyment of the rents. But then it appears that with the consent and approval of the whole parties interested, the trustees instructed their factor to divide the rents into five shares, and to retain the disputed fifth in his own hands; and further, that the rents have been so dealt with ever since 30th December 1887.

Accordingly, I think it is impossible to say that since that date there has been possession by the defenders of the only part of the property which is in dispute. They have voluntarily ceded possession, but to a neutral person who represents the one side as much as the other. And that is not the kind of exclusive possession which the law requires as the foundation of prescription.

“I shall therefore repel the defences, and give the pursuer the reduction he asks.”

The defenders reclaimed.

Argued for defender John King—(1) The title sought to be reduced was a good one on which to found prescription, and the Lord Ordinary's opinion on this point was sound. The trustees in their disposition and assignation had validly assigned to the defenders the precept of sasine contained in the codicil—Bell's Lectures on Conveyancing, ii. 949—and the latter were entitled to execute the precept and take infeftment as they had done. (2) There being a prima facie irredeemable title, prescriptive possession had followed upon it for thirty years from its date. The notarial instrument had been recorded between ten and eleven a.m. [ Lord Trayner—You have no habile proof that it was recorded between these hours. The writing on the back of the deed is not a certificate by the registrar, it is merely an unattested writing by a clerk]. If it was thought necessary, the fact that this was the true time of presentation could easily be certiorated by a certified copy of the entry in the minute book. Taking this to be a correct statement of the time of presentation, prescription admittedly ran de momento in momentum, not de die in diem—Ersk. iii. 7, 34 ; opinion of Lord President Campbell in Mercer v. Ogilvy, December 11, 1793, 3 Pat. App. 437. Prescription therefore began to run at eleven a.m. on May 7, 1868, and expired at the same hour on May 7, 1898. According to the pursuers' own statement, the summons was not served till between two and three p.m. on the latter day. By that time the thirty years had expired. The pursuers contended that no part of the first day should be counted. There was no reason why part of the first day should not be counted. No doubt under the Act 1617, c. 12, prescription ran from a “date”; but “date” did not necessarily mean a day, it meant a given point of time, and applied to a moment or an hour as well as a day. The defenders having therefore possessed the property in dispute on an ex facie valid title for more than the prescriptive period, they were entitled to succeed in this action. (3) Possession had not been interrupted during the course of the prescriptive period. During the course of that period the title had never been effectively challenged. The tenants of the subjects were the disponee's tenants, and the possession of tenants was to be accounted possession by the proprietors—Ersk., iii. 7, 5 ; Campbell, March 6, 1754, 5 Brown's Supplement, 812. The disponees were the only parties infeft, and there was no competing title. The civil possession of the property had been in them since 1868. The factor only drew the

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rents as factor, and the fact that he retained a portion of the rents by arrangement of the trustees did not affect the legal possession of the disponees under their title. Besides, John King was a singular successor, the conveyance in whose favour was challenged, and he could not be prejudiced by the arrangement made in December 1888. In his case at least the title had never been validly challenged till the raising of the present action. (4) The pursuer had no interest to sue. The title which he sought to reduce was the title given to and accepted by his father. The pursuer had no title in his own person, and he made no allegation that his father had been defrauded, or that the title was taken in the present form without his knowledge or consent. (5) John Simpson, from whom the present defender's title was derived, was entitled to a share of the fee of the property in question, although he had been born after the death of the testator. The destination was one of heritable property to a class, and that class included John Simpson— Carleton v. Thomson, July 30, 1867, 5 Macph. (H.L.) 151, opinion of Lord Colonsay, 155 ; Hickling's Trustees v. Garland's Trustees, August 1, 1898, 1 F. (H.L.) 7.

Argued for defenders Mrs Marshall and Mrs Fraser—They adopted the arguments of the defender John King as regards the pursuer's contention, but they further argued that John Simpson, the person from whom John King's title was derived, had no right to a share of the property in dispute, because the beneficiaries entitled thereto must be fixed at the date of the testator's death, and John Simpson was born three years thereafter. The words in the codicil were to dispone “on my death” to the issue of his daughters. The class must therefore be fixed as at that date, and a post natus was not entitled to share— Boss v. Dunlop, May 31, 1878, 5 R. 833. There was no hardship in this, because the codicil only dealt with the Helensburgh property and left the trust-disposition in other respects unchanged, and under the trust-disposition grandchildren “to be lawfully born” were included in the provisions. The first of the two deeds being differently expressed was an argument in favour of the view that in the case of the property dealt with by the codicil the testator intended that the issue alive at his death, and they alone, should get the fee. It was the duty of the trustees to give effect to the intention of the truster, that being the ruling consideration— Opinion of Lord Cowan in Wood v. Wood, January 18, 1861, 23 D. 338.

Argued for pursuer—(1) The defenders had not a good title on which to found prescription. The precept was contained in the codicil, which left the estate on the testator's death to the testator's daughters in liferent and to the issue of his daughters equally per stirpes in fee. The notarial instrument which was said to give infeftment was in favour of the testator's daughter in liferent and four persons nominatim stated to be her children equally among them in fee. It was admitted that these four persons were not the whole issue of the daughter alive at the date of the testator's death. There was thus a discrepancy between the precept of sasine and the instrument of sasine following thereon. This was a fatal defect and vitiated the title. (2) Even if the title were held to be ex facie valid, thirty years' prescriptive possession had not followed upon it before the possession was interrupted by the service of the summons. In calculating the prescriptive period the diesinceptus or any part thereof must not be included. No one disputed that prescription ran de momento in momentum, but the point of time to start from was the midnight of the day of registration— Frew v. Morris, March 12, 1897, 34 S.L.R. 527. The Act 1617, cap. 12, described the years of prescription as following on the “date” of infeftment, and date in legal phraseology never applied to any period less than a day. The marking on the back of the notarial instrument was a jotting by a clerk, and it would be unsafe to hold that that by itself settled the question of the court hour of registration. The safe and customary plan was to count the period of prescription as commencing at midnight of the day of registration. In other words, in reckoning the prescriptive possession the date upon which sasine was given must be excluded— Lindsay v. Giles' Trustees, February 7, 1844, 6 D. 771. That being so, prescription had been interrupted by the service of the summons. (3) If there had been any possession at all of the subjects by the defenders, that possession had been interrupted by the pursuer's claim in 1886 and the arrangement following thereon in 1888. A dispute had then arisen and had been followed by dispossession of all parties and the installation of the trustees and their factor pending the settlement of the dispute. If a heritable subject was claimed by two different persons, and they agreed that another should occupy that subject pending the settlement of the dispute, it would be ridiculous for either of the disputing parties to maintain that he had possession of the subjects during that period. That was just the case here. The defender King was a party to the agreement of 1888, and could not now ignore it on the ground that he was a singular successor. Possession to found prescription must be peaceable, exclusive, and continuous—Rankine on Landownership, 3rd ed., pp. 35, 37, and 54—and in the face of the dispute in 1886 no such possession had occurred here. (4) Although the pursuer's father had accepted the assignation from the trustees he did so in ignorance of his rights, and no prejudice had been sustained by the defenders. The pursuer was therefore not now barred from insisting in his claim.