United Kingdom House of Lords Decisions

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SCOTTISH_HoL_JURY_COURT

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(1831) 5 W&S 43

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1831.

1 st Division.

No. 5.

James Hume and Others, Appellants. Lord Advocate (Jeffrey)—Walker

v.

William Duncan, Respondent.—Sandford—A. M'Neil

Feb. 18, 1831.

Lord Meadowbank.

Subject_Prescription — Title to exclude. —

Where a proprietor of heritable subjects granted an ex facie absolute disposition, on which infeftment was taken, qualified by a back bond containing a power of redemption within eleven years; and he assigned this bond to a third party, and disponed the property to him; and the assignee, within the eleven years, raised an action of redemption, which fell asleep; and the heir of the original disponee acquired right to the assignation and relative action, which he afterwards wakened—Held, in an action of reduction on fraud and incapacity, (affirming the judgment of the Court of Session,) that although more than forty years had elapsed from the date of the above deeds, yet a prescriptive title had not been obtained, so as to exclude a challenge by the heir.

James Duncan bought, as was alleged, for £600, certain heritable subjects in the Kirkgate of Leith, under a disposition on which he did not take infeftment; but requiring, in order to pay them, a loan, he executed, on the 4th of September 1771, an ex facie absolute disposition in favour of John Watson, with assignation to the unexecuted precept on which Watson was infeft on the 19th (recorded on the 20th), and Watson on the same day granted a back bond, declaring, that “albeit the said disposition does bear to be an absolute and irredeemable right of property to the said tenement and pertinents, I hereby declare that the same is redeemable and may be redeemed at any time within the space of eleven years from the date hereof, upon payment of the sum of £150 sterling,” the sum advanced to Duncan.

Thereafter, in 1773, Duncan entered into a transaction with Robert Hope, by which he bound himself, “his heirs and successors, to grant a full and ample disposition, containing all

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the requisite and necessary clauses, and to free and relieve the subjects after mentioned (the above premises) of all debts and encumbrances; and, being so disencumbered, to grant the said disposition to and in favour of the said Robert Hope, his heirs and assignees,” of the subjects in question; and he thereby not only de præsenti disponed these subjects, but also assigned the back bond by Watson, and acknowledged that “the price instantly paid me by the said Robert Hope, together with the obligation hereafter mentioned, wherein he becomes bound to relieve me of the debt due to John Watson, is a full and adequate price for the subjects above mentioned.”

On the other hand, Hope bound himself to relieve Duncan of the debt due to Watson.

Hope assigned his right under this deed to Tod, as trustee for his creditors; and in 1782 Tod raised an action of redemption against Watson, in which an interlocutor recalling a decree in absence was pronounced in July 1783; but the process afterwards fell asleep, and Watson died in the same year.

By a deed of settlement Watson conveyed the subjects to his son Samuel, who disponed them to his brother James. James was infeft on the 27th of January 1787, and in 1792 he disponed them in trust to Hume, for behoof of his children. After the death of James Watson, Hume, on the 11th of May 1816, expede a charter of resignation and confirmation.

In 1821 Tod wakened and transferred the process of redemption against Hume as trustee and against the representatives of John Watson. William Duncan, having obtained himself served heir in general to his father, brought, in January 1823, an action of reduction of the disposition in 1771 to Watson, and also of the assignation to Hope, on the ground of fraud, incapacity, and blindness.

In defence, Hume, as trustee of Watson, founded upon the absolute disposition and sasine in favour of Watson in 1771, with forty years' possession, as sufficient to give him, in virtue of the positive prescription, a right to the property; and, on the lapse of that period, as sufficient, by the negative prescription, to extinguish the back bond containing the obligation to reconvey. Tod, as in right of Hope, in like manner founded upon the absolute conveyance in the deed 1773 as exclusive of the right of the respondent; and both parties therefore declined to satisfy the production.

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Pending this action, Hugh Watson (one of the representatives of the original disponee, John Watson,) acquired right from Tod to the deed in favour of Hope, and maintained the same pleas as Tod. The pursuer admitted that his father had received £150 from John Watson in 1771, and £100 from Hope; but he alleged that the sum which Hope ought to have paid was £400.

The Lord Ordinary found, “that the pursuer's (respondent's) title to insist is excluded by the operation both of the positive and of the negative prescription; and therefore sustained the title to exclude founded on by both defenders,” and dismissed the process. The pursuer reclaimed, and the Court having observed, that although he admitted the receipt of the £150 and £100, he concluded for reduction in toto, he proposed to amend the conclusions. The Court therefore recalled the interlocutor in hoc statu, and remitted to the Lord Ordinary to receive a supplementary summons. The pursuer then raised a supplementary action of declarator, to have it found that the above deeds were truly held only as securities, and concluding for count and reckoning, under deduction of the above sums. The Lord Ordinary conjoined it with the reduction, and then reported the case to the Court, who, on the 26th February 1829, “repelled the defences stated by the defenders, arising from an alleged exclusive title to satisfy the production, remitted to the Lord Ordinary to proceed accordingly, and found the defenders liable to the pursuer in payment of the expenses of the present discussion ^*;” and which expenses were afterwards modified, and decerned for.

Hume, Tod, and Watson appealed.

Appellants.—The deed of 1771, and sasine thereon, vested in John Watson a sufficient title to acquire an absolute title by prescription, so as to exclude all extrinsic objections. In virtue of this title he and his successors possessed the subjects unchallenged till 1821; so that more than forty years had elapsed. The title is therefore rendered free from all exception by the positive prescription. Again, the back bond, being a mere personal obligation, was extinguished by the effect of the negative prescription.

_________________ Footnote _________________

* 7 Shaw and Dunlop, No. 243.

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In like manner the deed of 1773 has been fortified by the positive prescription.

Respondent.—The sole question at present relates to a preliminary objection taken by the appellants to satisfy the production. They say, that because they have possessed on deeds ex facie absolute for forty years, it is not relevant to say that those deeds were acquired by fraud and deception; but wherever a deed is challenged on that head it must be produced, and the party must enter on the merits, as to whether there was fraud or not. This was expressly so decided in Sinclair v. Sinclair.

Lord Wynford.—My Lords, so long ago as the 4th September 1771, James Duncan, the father of the present respondent, purchased certain houses, for which he was to pay £600. He had not at the time the £600, but borrowed £150 from John Watson, the father of one of the appellants, and made an absolute conveyance of the property to him, so that it appeared as if Duncan had obtained the whole consideration money from Watson. At the same time a back bond, that is, an instrument by reference to which the real nature of the transaction is to be understood, was given. At a subsequent period Duncan conveyed the estate and assigned the back bond to a person of the name of Hope, who contracted to pay off the debt due to the original mortgagee, and to pay an additional sum of £400. We have no means of knowing whether that £400 was paid or not. It is insisted, that although the consideration appeared to be £400, in point of fact only £100 was paid. It is also further stated, although we have not the means of knowing the fact, that Duncan was in a condition to have a fraud practised upon him—that he was perfectly blind, and an imbecile person. Upon these grounds his son instituted an action of reduction of all the deeds; to this action it was answered, that the title of the pursuer is excluded by prescription. But the pursuer insisted, that, there having been fraud on the part of the other parties, prescription was no title to exclude; and in looking attentively to the authorities on the case, it appears to me that he is not precluded by the length of time. The law of Scotland upon the subject of prescription seems quite settled by the cases of the Duke of Gordon and of Sinclair. It appears to me that the judgment of the Court below was right. I shall therefore beg leave to move your Lordships, that the judgment of the Court below be affirmed.

The House of Lords ordered and adjudged that the interlocutors complained of be affirmed.

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Appellants' Authorities.—3 Stair, 1, 13, Stat: 1617, c. 12; 2 Stair, 12, 15; 3 Ersk. 7, 8; 2 Bank. 12, 16; Younger, Nov. 28, 1665 (10,925); Murray, March 18, 1807 (10,721); Stewart, July 6, 1711 (10,722); Clerk, Jan. 27, 1746 (10,662); Paul, Feb. 8, 1814 (F. C.); M'Donell, Feb. 26, 1828 (6 Shaw and Dun. 600.)
Respondent's Authorities.—Sinclair, July 4, 1781 (6,725); 2 Sandford on Heritable Suc. 127.

Solicitors: Richardson and Connell— J. Duthie,—Solicitors.

1831