"The late John McMurtrie had a real right to the property. On his death his wife [Sarah] had a personal right which she failed to make a real right. Her son [Robert] therefore inherited a personal right to the property. He did not make the right real either. His personal right had prescribed prior to the purported missives of 19 October 1970. He had lost his right title and interest to the property known as 57 Main Street, Dreghorn by the expiry of the period of 20 years long negative prescription. He had no right to property with which to make a contract for sale to the first defender in 1970. The first defender acquired no right in 1970. ..."

Those averments instruct the first plea-in-law for the pursuer, which is in the following terms:

"The McMurtrie family's rights to the property being personal and having prescribed as condescended upon prior to 1970 decree of reduction should be granted as concluded for."

The first defender moves the court to give effect to his general plea of relevancy of the action by refusing to admit those averments in Article 3 of Condescendence to probation and by repelling the pursuer's first plea-in-law. Mr Mundy explained that, "potentially", the result of doing that would be to remove from consideration the first four conclusions of the summons, all of which were founded upon the invalidity of the 1970 missives; but he accepted that the position was not entirely clear because of other averments on record about the failure to implement those missives. He told me that parties were agreed that I should put the case out By Order for further procedure to be discussed in light of my Opinion on the issue argued before me.

Argument for the first defender

"in all of these cases it is clear that what prescribed was a right of action. Because the right of action was susceptible of prescription, the uninfeft proprietor who was out of possession lost his chance of regaining it."

Mr Mundy emphasised that I was not concerned here with the Prescription and Limitation (Scotland) Act 1973, which only applied from 1976 and did not revive rights which had already prescribed. The words in the Act of 1617 were (using the relatively modern translation at page 6 of the Handbook of Prescription According to the Law of Scotland by JH Millar, published in 1893):

"And sicklike, his Majesty, with advice foresaid, statutes and ordains, that all actions competent of the law, upon heritable bonds, reversions, contracts, or others whatsoever, either already made, or to be made after the date hereof, shall be pursued within the space of forty years after the date of the same ..."

The original Scots can be found set out in the opinion of Lord Mackay of Drumadoon in Doreen Anne Redford v James Smith (unreported, 16 July 2002) at para [11]. These were words of limitation. Mr Mundy referred me to the Opinion of Lord Maclean in the third action between these parties - Bain v Bain (unreported, 7 January 1994) -to which I have already referred. Certain remarks on pages 3-4 of that Opinion supported the first defender's case in the present action. However, Mr Mundy accepted that they were obiter and that I was not bound by them, even though the action was between the same parties. Further, he accepted that the reasoning was flawed, since it appeared to be based upon a wrong assumption that the 1973 Act applied and his Lordship had not been addressed fully on the authorities. Later that same year Lord Maclean decided the case of Porteous's Executives v Ferguson 1995 SLT 649 in which he held that the right to make up title to the property could be, and in that case had been, extinguished by operation of the long negative prescription prior to the 1973 Act coming into force. He did not mention his apparently conflicting decision in Bain v Bain. The leading authority, however, was Pettigrew v Harton 1956 SC 67. Although Mr Mundy conceded that, "on a simplistic view", that case could be regarded as contrary to his submissions, on closer analysis it was not, since the uninfeft was not in possession and, therefore, required to take action to enforce his rights. Mr Mundy also referred me to a number of other cases, including Lady Cardross v Graham of Buchlivie (1710) M 10657 and Cubbison v Hyslop (1837) 16 S 112, both cited in the footnote to Johnson, Prescription and Limitation at para 3.57, and to the commentary in Millar at pages 79 and 82. Finally he referred me to the decision of Lord Mackay of Drumadoon in Redford v Smith. He recognised that that decision was against him in that Lord Mackay had interpreted the decision in Pettigrew v Harton as proceeding on the basis that the rights of a uninfeft proprietor to make up and complete title to land could be extinguished by the negative prescription. But he submitted that that decision was wrong; and if I too thought it was wrong I should say so. Pettigrew v. Harton had proceeded by analogy with a jus crediti. But we were here dealing with a personal right of property, which was not the same thing. He referred me to Sharp v Thomson 1997 SC (HL) 70 to show that the concept of "property" was somewhat flexible. He submitted that the law now recognised something in-between a personal right on the one hand and a right of infeftment on the other. By virtue of the right of inheritance, the late Robert McMurtrie had had a personal right to property, more than just a jus crediti. That right did not prescribe.

Argument for the pursuer

Decision