Scottish Court of Session Decisions

The Titles to Land Consolidation (Scotland) Act 1868, enacts—Section 46—“On being recorded and extracted as aforesaid every decree of special service … shall to all intents and purposes, unless and until reduced, be held equivalent to and have the full legal operation and effect of a disposition

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in ordinary form of the lands contained in such service granted by the person deceased being last feudally vest and seised in the said lands to and in favour of the heir so served. …, and in order that the feudal title may be completed in the person of the heir so served it shall be lawful and competent for him to use such extracted decree in the same manner and to the same effect as if such extracted decree were actually a disposition of the nature above mentioned, and in particular he shall be entitled to record the same in the appropriate Register of Sasines as a conveyance under this Act along with a warrant of registration thereon on his behalf, and such extracted decree and warrant of registration, upon being so recorded in favour of such heir, shall form as effectual an investiture … as if such investiture had been created by a disposition from the deceased as aforesaid recorded … in favour of such heir at the date of so recording the said extracted decree of service …”

Louisa Stobie, 9 Brighton Street, Edinburgh, pursuer, brought an action of reduction against (1) Janet Stobie, Margaret Stobie or Adams, wife of John Sutherland Adams, and the said John Sutherland Adams for his interest, and Agnes Stobie or M'Killop; (2) James Alexander Stobie, executor-dative of the deceased David Stobie; (3) Robert Smith, and Mary Agnes Wells or Smith, wife of the said Robert Smith; and (4) the testamentary trustees of the deceased Adam Manson, defenders, concluding for reduction of “(1) an extract decree of special service granted by the Sheriff of Chancery, dated 27th May, recorded in the books of Chancery 30th May, and recorded in the Division of the General Register of Sasines applicable to the county of Edinburgh 16th June, all in the year 1916, whereby the said Janet Stobie, Margaret Stobie or Adams, and Agues Stobie or M'Killop were served nearest and lawful heirs in special to the said deceased David Stobie in” certain heritable subjects in Gladstone Terrace, Edinburgh; “(2) a disposition of the said subjects granted by the said Janet Stobie, Margaret Stobie or Adams, John Sutherland Adams, and Agnes Stobie or M'Killop, with consent” therein mentioned “in favour of the said Robert Smith and Mary Agnes Wells or Smith and the survivor, dated 9th, 12th, and 15th June, and recorded in the said Division of the General Register of Sasines 16th June, all in the year 1916; (3) a bond for the sum of £50 granted by the said Robert Smith, and disposition of the said subjects in security granted by the said Robert Smith and Mary Agnes Wells or Smith in favour of the” testamentary trustees of the said Adam Manson, “dated and ratified 10th November, and recorded in the said Division of the General Register of Sasines 11th November 1919 … so far as the said bond and disposition in security purported to affect the said heritable subjects or to create a burden thereon.”

The following narrative is taken from the opinion infra of the Lord Ordinary ( Anderson):—“On 13th March 1916 David Stobie died unmarried and intestate. He was infeft in heritable subjects at No. 3 Gladstone Terrace, Edinburgh, which he had acquired as heir of his sister Elizabeth Stobie. Shortly after the death of the said David Stobie a petition was presented to the Sheriff of Chancery by the defenders Janet Stobie, Margaret Stobie or Adams, with consent of her husband John Sutherland Adams, and Agnes Stobie or M'Killop, to have them served as nearest and lawful heirs in special to the deceased David Stobie. These petitioners were nieces of the said David Stobie, being the daughters of his only brother Robert Stobie. The said Robert Stobie had also a son William, who died intestate in 1897, leaving as issue the pursuer in the present action, who is thus a grandniece of the said David Stobie, and admittedly his nearest and lawful heir-at-law. The pursuer was unaware of the said petition in Chancery, and had not known of the death of the said David Stobie. The proof in said petition consisted of two affidavits, which did not disclose the fact of the pursuer's existence. It is in my opinion regrettable that the proof took this form. Had oral testimony been given it is more than likely that the fact of the pursuer's existence would have been ascertained, and intimation to her of the Chancery proceedings would have been ordered. The Sheriff of Chancery pronounced decree of special service in favour of the petitioners on 27th May 1916. An extract of said decree was recorded in the Books of Chancery on 30th May, and in the Division of the General Register of Sasines applicable to the county of Edinburgh on 16th June, both in the said year 1916. The said petitioners thereafter sold the said heritable subjects to the defenders Robert Smith and Mary Agnes Wells or Smith for £158, and granted a disposition of said subjects in favour of the said disponees or the survivor dated 9th, 12th, and 15th June, and recorded in the said Division of the General Register of Sasines 16th June, all in the said year 1916. The said disponees granted in favour of the defenders fourth called a bond and disposition in security over said heritable subjects for the sum of £50, dated 10th, and recorded in said Division of the General Register of Sasines 11th, both days of November 1919. The pursuer recently learned of the death of the said David Stobie and of her rights as heir-at-law, and she has brought the present action for reduction of the said decree of special service, disposition, and bond and disposition in security, the last-mentioned deed only in so far as it purports to affect the said heritable subjects or to create a burden thereon. In addition to the said disponees and security holders, both of whom have lodged defences, the pursuer has called as defenders the said petitioners in Chancery and also the executor-dative of the said David Stobie, but defences have not been lodged either by the said petitioners or by the said executor-dative.”

The pursuer pleaded—“1. The decree of special service under reduction having been granted in favour of persons who are not the nearest lawful heirs in special of the

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deceased David Stobie, and who are not entitled to succeed as heirs to (the said heritable subjects, the said decree and all that has followed thereon should be reduced as concluded for. 2. The defences being irrelevant they should be repelled.”

The defenders Robert Smith and Mary Agnes Wells or Smith pleaded, inter alia—“2. The said decree of special service having been pronounced by a competent Court, and these defenders having onerously and in bona fide and on the faith of the records acquired right to the subjects thereby disposed of, neither it nor the disposition in their favour following thereon is reducible at the instance of the pursuer, and these defenders are accordingly entitled to absolvitor. 3. The pursuer not having come forward to oppose the petition for special service before the Sheriff of Chancery is barred from suing the present action. 4. Esto that said decree and deeds fall to be reduced, these defenders are in the circumstances entitled to have it made a condition of decree of reduction being pronounced that they be recompensed by the pursuer for the price of the said subjects, and restitutio in integrum made to them.”

The defender Adam Manson's trustees pleaded, inter alia—“2. The said decree of special service having been pronounced by a competent Court, and the defenders the said Robert Smith and Mary Agnes Wells or Smith having onerously and in bona fide and on the faith of the records acquired right to the subjects thereby disposed of, and these defenders having onerously and in bona fide and on the faith of the records having obtained the said bond and disposition in security, neither the said decree of special service nor the deeds following thereon are now reducible at the instance of the pursuer, and these defenders should be assoilzied, or otherwise, as a condition of reduction, the amount of said bond, principal, interest, and penalties, if any, due thereunder, ought to be paid to these defenders. 3. The pursuer not having come forward to oppose the petition for special service before the Sheriff of Chancery is barred from suing the present action. 4. Separatim—These defenders are in the circumstances entitled as a condition of decree of reduction being pronounced to have the pursuer ordained to find caution or security for the amount of their loan to the defenders Mr and Mrs Smith.”

On 2nd June 1921 the Lord Ordinary ( Anderson) granted decree of reduction as concluded for.

Opinion.—[ After the narrative quoted supra]—“The immediate purpose of the action is to clear the way for an application by the pursuer to the Sheriff of Chancery for a decree of special service in her favour as nearest heir of the said David Stobie. Remoter results of the pursuer's success in the action will be the dispossession of the said disponees and the deprivation of the said bondholders of their real security.

It is therefore obvious that whatever decision may be pronounced this is a hard case for the unsuccessful party.

The pursuer's contention is very plain, and, I am afraid, difficult to meet. She says that she comes forward at the earliest possible moment and well within the period of prescription to vindicate her legal rights. The claim which she makes is not and cannot be challenged by the rival heirs who forestalled her in Chancery. She alleges that it necessarily follows that those who derived their rights from those rival heirs, and who are defending the action, must be unsuccessful in their defence.

It is in my opinion immaterial, and therefore it is unnecessary to determine, whether the petitioners acted innocently or fraudulently in failing to disclose in the Chancery proceedings the fact of the pursuer's existence, of which I am satisfied they were well aware. The pursuer's position on either assumption is the same, to wit, that the petitioners were not entitled to obtain the decree of special service which was pronounced, and that the pursuer as the only person entitled to obtain that decree may now have it reduced.

It is necessary to take note of certain statutory enactments as to decrees of special service.

Originally service as heir proceeded on a brieve issuing from Chancery and directing a judge to ascertain the validity of the claimant's title by an inquest or jury of inquiry. After the jury's verdict the service and brieve were retoured to Chancery, an extract from which, called the retour, was the claimant's evidence of the service.

The Service of Heirs Act 1847 abolished brieves of service and substituted a petition to the Sheriff of the county of the deceased's domicile or to the Sheriff of Chancery. The decree of special service granted under this Act contained a precept of sasine, and the extract had the legal effect of a disposition by the party deceased last infeft in favour of the heir served, with obligation to infeft, assignation of writs and rents, and precept of sasine. Upon this infeftment might pass, but only in favour of the party served— Moreton's Trustees, 16 D. 1109. This infeftment with the decree of service was declared by the Act of 1847 to be an effectual investiture holding base of the deceased and his heirs until confirmation.

By the provisions of the Titles to Land Consolidation (Scotland) Act 1868 there is no precept of sasine in the extract decree of special service (sec. 46), and the decree is now equivalent to an unrecorded disposition by the ancestor in favour of his heir, containing the clauses in the form of the disposition provided by the Act. The title of the heir was completed prior to 1874 by recording the decree in the Register of Sasines and obtaining a writ of confirmation endorsed upon it by the superior.

By the Conveyancing Act 1874, section 9, the heir's title is completed by recording the decree of special service in the Register of Sasines.

The Consolidation Act 1868 contains elaborate provisions as to the procedure to be followed in applying for and obtaining decrees of service as heir (sections 27–49). By section 30 it is provided that publication of a petition to Chancery for service as heir

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should be made edictally in Edinburgh, and by an abstract of the petition being affixed on the doors of the court-house or other conspicuous place in the county of the deceased's domicile. Section 42 provides that when a process of reduction of any decree of service is brought in the Court of Session the cause may be tried by a jury.

The Act 1617, cap. 13, establishes a vicennial prescription of retours. This vicennial prescription has been adapted to the new rule of vesting introduced by the Conveyancing Act of 1874 by the 13th section of that Act.

The Act of 1617, cap. 12, establishing the positive prescription specially refers to ‘retours’ as being the appropriate warrant for an instrument of sasine upon which the period of the positive prescription might be based. Finally, the 34th section of the Conveyancing Act 1874 reduced the period of the positive prescription to twenty years of possession on ‘any ex facie valid irredeemable title to an estate in land recorded in the appropriate Register of Sasines.’

The defenders' counsel resisted the motion made by the pursuer's counsel for decree of reduction de piano on a variety of grounds which are disclosed in the pleas-in-law.

1. The main contention of the defence is to be found in the second plea-in-law of the disponees. I am unable to hold, keeping in view the law of prescription, that any of the points emphasised in that plea are material or relevant.

That the title attacked is a decree, that it emanated from a court which was competent, that the property was acquired onerously and in good faith and on the faith of the records—all this seems to be beside the mark; none of the statutory enactments as to prescription refers to any of the considerations emphasised in this plea or makes the operation of prescription dependent on their presence or absence.

The procedure in petitions for service to which I have alluded was founded on by the defenders' counsel. It is plain, however, that if it were to be held that regularity of procedure made a decree of the Chancery Court inviolable, the provisions of the two Acts of 1617 and of the 35th section of the Act of 1874 would be meaningless.

Any retour by the Act 1617, cap. 13, however solemnly and regularly made, may be challenged within the vicennium. The foundation of prescription which the 1874 Act postulates is an ex facie valid title. How then can it be successfully maintained that such a title is beyond challenge, and that no prescriptive possession is necessary? It was said that the conditions of onerosity and good faith protected the disponees' title from challenge. There is no authority for this proposition and it cannot be reconciled with the statutory provisions as to prescription. The cases relied on by the defenders— Wilson & Others, 3 W. & S. 60; Baird, 13 Sh. 927; Williamson, 14 D. 127; and Buist, 3 R. 1078—do not appear to me to be in point or to support the contention which was urged. The pursuer's counsel founded on the case of Rocca, 4 R. 70. There the action was held to be barred by the vicennial prescription of retours, but the point now under consideration was touched by the Lord Justice-Clerk in the concluding paragraph of his judgment at p. 73. What is said is this—‘It is said, however, that the service was radically bad in respect that it was obtained by fraud. Questions of considerable subtlety might have arisen if there had been a relevant and sufficient allegation of fraud. For I am not sure whether in that case the defenders could say that their title as singular successors excludes the action. A general service establishes propinquity, and although part of the property which belonged to the ancestor has been transferred to a singular successor that will not prevent the true heir from reducing the service of the false heir. In that case it might be contended that the title of the singular successor is annulled not on the ground of fraud but because it flows a non domino. But I do not think that these questions arise in the present case, because the allegations of fraud and subornation of perjury are far too vague to be admitted to probation.’ Reference may also be made to the case of Neilson, 15 Sh. 365, aff. 1 Rob. 82. In that case it was decided that the Act 1617, cap. 13, establishes an absolute protection of retours against parties alleging themselves to be the true heirs after the lapse of twenty years. The converse of that proposition as it seems to me is extractable from the judicial opinions that were delivered, namely, that during the currency of the vicennium there is no absolute protection of any retour against challenge by a nearer heir. In the House of Lords the Lord Chancellor (Cottenham), dealing with an argument based on the provisions of the Act 1494, cap. 57, which established a triennial prescription of actions of error against the inquest, said, at 1 Rob. p. 95—‘Then, my Lords, it was said that the Act of 1617, cap. 13, must be considered as applying only to the species of process which at that time existed, namely, to the prosecution of the jury for an erroneous conclusion. I do not find any ground in the statute for that argument; on the contrary I find that the statute expressly distinguishes and separately provides for both cases; it gives the opportunity for twenty years of instituting proceedings for the purpose of reducing the retour, but it gives him three years only for the purpose of instituting this proceeding against the jury. With respect to that proposition I have also carefully looked through the text writers that have been referred to for the purpose of seeing whether in those text writers there was anything to support it and I can find no allusion to it.’

With this paucity of authority the point falls to be determined on principle, and it is plain to me that the contention of the defenders' counsel is antagonistic to and inconsistent with the whole law of prescription.

Moreover, that contention is out of harmony with the law of warrandice. There is a clause of warrandice in the disposition

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granted in favour of the disponees. The obligation thereby laid on the disponers was so imposed just to meet such a contingency as has arisen. The disponees got what looked like an unimpeachable title—an ex facie valid title—based on what appeared to be a good decree of a competent Court, and a search for encumbrances showed that the subjects of the transaction were unencumbered. They transacted, as it is put, ‘on the faith of the records,’ and all seemed well. But it is just because despite appearances of this auspicious character all might not be well that the clause of warrandice was inserted in the deed. The disponees were or ought to have been aware that their title was open to challenge for twenty years, and it was just because it might be challenged within that time, and challenged successfully, that they took the disponers bound in warrandice. But if the contention of the defenders' counsel is sound this was an unnecessary stipulation. The transaction was onerous, in good faith, and proceeded on the faith of the records, and therefore it is implied warrandice was unnecessary; the disponees cannot in these circumstances, it is suggested, be ousted.

Finally, the said contention conflicts with the law of bona fide possession. The disponees claim in the present action for meliorations. The meaning of that is that they have hitherto possessed in good faith although not as of right. But the result of the contention I am considering is that there is no such rule of law; the disponees according to the argument cannot be evicted inasmuch as they transacted onerously and in good faith.

I am therefore against the defenders in this the main question in the case. The remedy of the disponees if evicted from the subjects is to proceed against the disponers under the warrandice clause. They have stated no relevant defence to the reduction craved by the pursuer.

The disponees state two other pleas which fall to be considered.

Plea 3 is one of bar. It is based on this—that the usual procedure was followed in connection with the petition in Chancery, that is, there was edictal publication in Edinburgh and on the Court-house door. It is not averred, however, that the pursuer had any knowledge of these proceedings, and in my opinion anything short of an averment that the pursuer knew or ought to have known of said proceedings is insufficient to support a plea of bar. I understood that it was common ground that the pursuer was in entire ignorance until recently of said proceedings. The said plea therefore falls to be repelled.

The fourth plea-in-law'for the disponees is to the effect that the pursuer should make restitutio by repaying to these defenders the price paid by them to the disponers. This is plainly an untenable proposition. The disponees must obtain repetition of the price if they can from those who received it. There is no obligation on the pursuer to repay these defenders what they must endeavour to obtain under their warrandice clause.

The fate of the other defenders the bondholders necessarily depends on that of their authors the disponees, and it only remains to consider their fourth plea-in-law. By that plea, as to which I heard no argument, it is craved that as a condition of decree being pronounced the pursuer should find caution or security for the amount of the bondholders' loan to the disponees. I have no difficulty in repelling this plea. The pursuer is entitled to take the property as it was when the succession opened to her, and at that time it was entirely unburdened.

I propose therefore, as all material facts are admitted, to grant decree of reduction as concluded for.

The disponees' claim for meliorations does not arise until the pursuer proceeds to evict them from the subjects This is a matter which the parties may well adjust, but lest they fail to do so I shall continue the cause for further procedure and grant leave to reclaim.”

The defenders Robert Smith and Mary Agnes Wells or Smith and Adam Manson's trustees reclaimed, and argued—A decree of special service was only pronounced upon satisfactory evidence and after publication. The title it conferred was equivalent to a disposition by the last person infeft. Such a title was valid unless and until reduced—Titles to Land Consolidation (Scotland) Act 1868 (31 and 32 Vict. cap. 101), sec. 46, and secs. 27 to 33 inclusive. The subsequent transfer of the subjects to onerous and bona fide third parties made on the faith of the decree rendered reduction no longer possible—Act 1617, cap. 13; Ersk. Prin., i, 7, 40; Bell's Prin., sec. 1840; Begg's Conveyancing Code, 127; Scottish Widows' Fund v. Buist, 3 R. 1078, 13 S.L.R. 659; Wilson v. Elliot, 1828, 3 W. & S. 60; Baird v. Neill, 1835, 13 S. 927; Williamson v. Sharp, 1851, 14 D. 127; Rocca v. Catto, 4 R. 70, 14 S.L.R. 40; Mackie v. Mackie, 34 S.L.R. 34.

Argued for the pursuer—This was a case of radical defect of title. There was no analogy between a disposition fraudulently obtained from the true owner and a service of the wrong person as heir. The cases cited by the defender fell under the former description. Until a decree of service was fortified by prescription it was open to the true heir to have it set aside together with the titles which depended on it for their validity—Bell's Com., i, 299–301; Stair, iii, 5, 42; Macnair v. Lord Cathcart, F.C., May 18, 1802, M. 12,832; Younger v. Johnstons, June 30, 1665, M. 10,924. The claim made by the onerous disponees for restitutio did not lie against the pursuer but against the granters of their titles.