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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Robert Brown, Esq. and Others (Trustees of James Campbell) - Attorney General (Campbell - Lushington v. Mrs. Elizabeth Sinclair and Others - Lord Advocate (Murray - Stuart [1835] UKHL 2_SM_103 (17 July 1835)
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Cite as: [1835] UKHL 2_SM_103
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SCOTTISH_HoL_JURY_COURT
Page: 103↓
(1835) 2 S&M 103
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1835.
1 st Division.
No. 5.
v.
[
Subject_Decree in Absence — Prescription — Minor — Title to Exclude. —
A decree of certification contra non producta was obtained against a pupil in an action of simple reduction of his father's disposition and sasine, brought on the ground of the disposition having been granted in trust, without value, to defraud the granter's creditors; and an action of reduction-improbation was thereafter brought of the disposition and sasine on the same grounds, with the additional ground of forgery, the summons in which was taken to see by a procurator for the pupil, and the production satisfied, and decree in terms of the libel pronounced, because of no farther appearance; but the pupil had no tutors or curators, and no tutor ad litem was appointed to him in either action; and a reduction being brought of these two decrees, and of the titles following thereon, by the heirs of the pupil, upwards of forty years afterwards; and it having been found by the Court of Session that these decrees did not form a valid title to exclude the reduction, in respect, 1. That they were to be held as decrees of certification or reduction, pronounced in absence. 2. That such decrees were liable to be opened up at any time within the period of the long prescription, and that the personal citation of the pupil was no bar to a reduction after his death. 3. That the minority of the parties in right for the time to challenge the decrees fell to be deducted from the period of prescription. 4. That the various
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sales and transferences which had been made to singular successors (against those of whom in possession the reduction was directed) did not bar the action; and an appeal being taken to the House of Lords against this judgment—cause remitted, with instructions to take the opinions of the whole judges.
By disposition, dated 25th January 1775, Henry Hay, heritable proprietor of the lands of Auchenstarry, in consideration of a certain sum of money paid to him by Henry Sinclair, the grandfather of the respondent, as the agreed on price, sold to Sinclair, his heirs and assignees, the lands of Auchenstarry and others, with the pertinents lying and bounded as therein mentioned. The term of entry to the lands was declared to be Martinmas 1778, and the disposition contained all the usual clauses of an absolute and irredeemable disposition for an adequate price paid. In virtue of this disposition Sinclair entered into possession, and was duly infeft on the 14th April, and recorded his sasine on the 10th May 1775.
This disposition and sasine formed the title on which the respondents, as heirs to their grandfather, claimed the lands of Auchenstarry, and in virtue of which they sought to reduce the subsequent and conflicting titles made up by the appellants and their authors.
The title in virtue of which the appellants, on the other hand, alleged that the respondents were excluded from inquiring into the validity of the feudal progress made up by the appellants, consisted of two decreets of certification or reduction obtained by the appellants' authors in the following circumstances.
Henry Sinclair died in the month of July 1776, leaving a widow, Margaret Hay, by whom he had an
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No claim was made to the lands either by Henry Hay or his creditors, during the lifetime of Henry Sinclair the grandfather, or for about nine years thereafter. In the spring, however, of 1785, Thomas Baird, alleging himself to be a creditor of Henry Hay, for 42 l. 6 s. 6 3⁄4 d., with interest and penalty, raised a summons of adjudication, directed against Henry Hay, then in America, or elsewhere abroad. This summons was executed edictally against Henry Hay, the sole defender, as forth of the kingdom. No appearance was entered in this action of adjudication, and decree in absence was pronounced therein on 11th August 1785.
In the following year Baird brought an action of reduction against Henry Sinclair, the infant, and against his mother and step-father as his tutors and curators, alleging as the principal ground of the reduction that the conveyance in 1775 by Henry Hay to Henry Sinclair the grandfather was without consideration, and in trust only, and to a conjunct and confident person, and calling for production of the disposition and sasine. Appearance was made for the parties who had been summoned, and they took the summons to see, but returned it without defences, and without satisfying the production. A decree was pronounced reducing the disposition, with certification contra non producta.
In 1787 William Hay, the son of Henry Hay, brought a reduction-improbation against the same parties, upon the same grounds, and also of forgery, with the
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At the date of both of the above decrees Henry Sinclair, the posthumous child, was a pupil, being, when the first of them was obtained, nine years of age, and when the second was obtained from ten to eleven years of age. He had no tutors or curators at any period of his pupillarity or minority. No tutor ad litem was appointed to him, and he never represented his father on any of the passive titles known in law—an alleged service to his father having been expede by the authors of the present appellants while he was a pupil.
He eventually married, and died on 27th April 1807, leaving three daughters—Elizabeth, Margaret, and Jane, the present respondents. He had no other children except Henry, a son, born 8th September 1801, who died in pupillarity. Poverty and ignorance of their rights appear to have prevented the respondents from raising the present action till 1832.
Their father survived his majority only nine years, and the eldest of the respondents attained majority between eleven and twelve years before the present action was instituted.
In the meanwhile Mr. Hay having made up titles to the property conveyed it to a purchaser, and it was ultimately acquired by James Campbell of Petershill, of whom the appellants were the testamentary parties. 1
_________________ Footnote _________________
1 For a detail of the progress see the Lord Ordinary's note, p. 107.
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In February 1832 the respondents brought this action to set aside the decrees obtained by Baird and Hay, and the subsequent titles made up by virtue thereof.
The appellants met the action by maintaining that their title, being fortified by prescription, included the title of the respondents.
The record being closed, the Lord Ordinary pronounced the following interlocutor and note on the 13th May 1834:—
“Sustains the title to exclude founded by the defenders (appellants) on the decree of certification, dated 19th July 1786, and the decree of reduction-improbation and declarator, William Hay against Henry Sinclair and others, dated 27th February 1788, produced, together with the several conveyances executed, the titles made up posterior thereto, and prior to the execution of the summons in the present action of the 8th February 1832, as set forth and produced in this process: Therefore sustains the defences, assoilzies the defenders, and decerns; finds expenses due, and remits the account when lodged to the auditor to be taxed.
Note.—Baird obtained a decree of adjudication of the lands in question in 1785. This right being apparently affected by a disposition of Henry Hay, the debtor, in favour of Henry Sinclair, his brother-in-law, in January 1775, on which infeftment had passed, Baird brought a reduction of these titles, and obtained decree of certification against Henry Sinclair, the son of the original disponee, in July 1786. Baird then made a full conveyance to William Hay; and this William Hay, after being served heir to his father, brought another action of reduction-improbation and declarator against Henry Sinclair, then said
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to have been a minor or pupil, and his tutors and curators, if he any had, and against his mother and his step-father. The extracted decree bears that Henry Sinclair, Margaret Hay, and David Auchinvolle were personally cited, and the tutors or curators edictally. Appearance was made for the defenders generally, and the production was satisfied, but no order was made for the defenders to abide by the writs as in an improbation for forgery. Great avizandum was made, and the case remitted for discussion, and then the extract bears that decree was pronounced, reducing, improving, &c. ‘the defenders failing to compear.’ This was followed by a charter of confirmation and precept of clare constat in favour of William Hay, on which he was infeft in April 1788. William Hay sold the lands to Cowburgh, who obtained a disposition, and was infeft April 29, 1788. Cowburgh sold to Dr. Lapsley, and his son was infeft in March 1803. The son's commissioners sold to Campbell, who was infeft, and obtained confirmation in 1820. Campbell disponed to the defenders, Brown and others, who obtained infeftment, and made a transaction of sale with the defender, Mr. Murray Garthshore. Henry Sinclair, against whom the decree in 1788 was obtained, is stated by the pursuers (respondents) to have been of the age of between ten and eleven, and to have died on or about the 27th April 1806, having thus survived the date of the decree, and, according to the pursuer's statement, at the age of twenty-eight.
In this state of the case the question is, Whether the pursuers are entitled now to open up the decrees
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obtained in 1786 and 1788, to the effect of setting aside the titles on which the pursuers and their authors have been in possession of the property, as onerous purchasers, for considerably upwards of forty years before the date of the summons? The Lord Ordinary thinks that it would be a singular case of hardship if this could be done, or if these third parties purchasers were post tantum temporis required to support the decrees of reduction by an investigation of the merits of them—a thing next to impossible, however good the grounds might be; but it does not appear to him that the plea of the pursuers can be sustained in point of law. The pursuers say, 1st, That the decree was against a pupil having no tutors or curators, and therefore null, as no tutor was appointed. But it is settled by the case of Sinclair against Stark, January 15, 1828, that the decree was not thereby rendered null, though if it was a decree in absence it might be liable to be opened up on the merits.
But the pursuers plead, 2d, That the decree was in absence, and that the writs having been produced, and no order made for the defenders to abide by them, it has not the force of a proper improbation. The defenders say that it was not a decree in absence, in so far as appearance was made for all the parties, and the production satisfied. There may be some doubt on this point, according to the principles held at that time; but as there was no discussion on the merits and no proof taken, it rather appears that it must be held that it was a decree in absence. But it does not appear to the Lord Ordinary to follow from this that it may be opened up at
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this distance of time, and in the circumstances of the case. The defenders plead negative prescription on the old statutes 1447 and 1467, and maintain that minority cannot be pleaded against prescription in such a case. This plea may deserve attention; but as the reduction affected the titles of an heritable estate, the Lord Ordinary rather thinks that the Act 1617 must govern.
But supposing this to be so, the Lord Ordinary apprehends that there is another principle of the law sufficient for the decision of the cause. A decree in absence may be opened up by a man who was of full age, as well as by a minor; and in the case of Campbell against the representatives of Graham, December 5, 1752, it was even laid down, “That quoad a decree in absence, minority cannot enter into the question, because a major may be reponed quandocunque against a decree in absence, upon paying expense and damage, and that a minor can have no stronger privilege.” Perhaps this may not be perfectly accurate; but the Lord Ordinary apprehends it to be clear, that if a man of full age would not be heard in a reduction of a decree as in absence, after acquiescing in it for twenty years, and seeing the property sold and resold to third parties on the faith of the decree, as little will any party be allowed to challenge a decree which was acquiesced in by the party many years after he became of age, and till his. death, and farther acquiesced in by his heirs during many years, and after titles had been repeatedly constituted in favour of third parties purchasers. The Lord Ordinary is humbly of opinion, that though
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by our law a decree in absence may be opened up to the effect of inquiring into the merits of it, the demand must be made debito tempore, within some reasonable time. The principle of the thing is, that accidents may occur to prevent the party from appearing, and that he ought not to be foreclosed by a decree pronounced without discussion if the other party can be replaced in the situation in which he was. But to give this the least colour of justice, the claim must be made within such time as to render it reasonably possible to restore both parties. The Lord Ordinary never heard that it was a general rule that any decree may be opened up at any time within forty years, and in any circumstances, merely because it was allowed to pass in absence. Such a rule would lead to the most intolerable injustice. Parties would keep up their case till the means of contradicting it were lost. Accordingly, in the case of Campbell against Graham's representatives above mentioned, where there was no room for prescription, and the defender in the action was an infant, “The Lords sustained the defence that the minute of sale was at an end by the decree of reduction, and by the after sale to Edward Cutlar in consequence thereof.” In the present case the parties were cited personally; the minor's mother and step-father appeared and entered appearance for him; the decree was acquiesced in not only till he came of full age, but for eight years after he was of age, and till his death; and after that it was acquiesced in for twenty-six years more, while in the meantime the property had been repeatedly sold on the faith of the decree, and
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titles by charters and sasines completed. Under these circumstances the Lord Ordinary is of opinion that post tantum temporis, and in respect of the sales made and titles created, it is too late for the present pursuers to challenge the decrees as decrees in absence.”
A reclaiming note was presented by the pursuers (respondents) to the Lords of the First Division, who, on the 3d March 1835, pronounced this judgment:—
“The Lords having advised the cause, recall the interlocutor of the Lord Ordinary reclaimed against, find that there is no title to exclude, and remit to the junior Lord Ordinary to proceed further, as shall be just, reserving all questions of expenses.” 1
The appellants then applied for leave to appeal, lest the judgment should be considered interlocutory, in so far as it did not dispose of the real merits of the case, which was granted.
Appellants.—1. The general principle assumed by the respondents, and recognized by the Court, that a decree in absence may be opened up in any circumstances within forty years of the date at which it was pronounced, is destitute of any authority; no dictum of any text writer in favour of this doctrine has been produced, and it is manifestly at variance with the principle upon which the authorities have proceeded. In fact it is assumed that a decree in absence is in reality null and void as a judgment, or as constituting any right in the person of the party who has obtained it,
_________________ Footnote _________________
1 13. S. D. & B. 594.
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2. That a decree in absence pronounced against a minor is as effectual against him, and is entitled to the same respect as when pronounced against a third party, more especially if the minor survive his minority and the quadriennium utile, without challenging such decrees, is supported by all the authorities, and is recognized by various decisions. The effect of such a decree was specially considered in the case of
Graham v. Campbell, and in the late case of
Sinclair v. Stark, 15th January 1828. In this last case it was finally decided that the decree against a pupil was entitled to effect, and could not be considered as null and void. But if entitled to the same effect as another decree in absence, it must follow that any challenge of that decree, or attempt to open it up, must be liable to the same rules as those generally applicable; and therefore if the party against whom the decree has been pronounced allows a period to elapse, during which time third parties have onerously contracted upon the faith of the decree, there is no ground in law
_________________ Footnote _________________
1 Stair, B. 4. t. 20, s. 4.;
Rankine v. Crawford, Jan. 16, 1735;
Urie v. Gordon, Dec. 1610;
Elchies, vol. ii. p. 202;
Auchintarry v. Bruce, Jan. 31, 1622;
Glendinning v. Gordon, Jan. 5, 1699.
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3. The right of setting aside a decree in absence is a mere right of action; and although the effect of the reduction may be to open to the pursuers a claim to heritable property, yet this right of action is not an heritable right in terms of the act 1617, and therefore the years of minority are not deducible from the long prescription, and the decreets of reduction in question are now unchallengeable and form a good title to exclude, more than forty years having elapsed from the time when the decrees of reduction were pronounced.
The right of deducting minorities from the period of the long prescription is a statutory privilege, to be strictly interpreted in a case such as the present, where a claim is made to set aside the rights in the persons of bonâ fide purchasers after possession has been had for a period of forty-six years, trusting to the decrees pronounced by the Court of Session. Certain rights of action are specified in the act 1617 with regard to heritable rights, but an action of reduction of the nature brought does not fall under the statute. Such a right of action is put an end to by the negative prescription introduced under the acts 1469, cap. 29., and 1474, cap. 55., and the right of deducting minority is not given by these statutes. It was found in the case of
Paul v. Reid, February 8, 1814, that “a right of action for the recovery of heritable property, if
_________________ Footnote _________________
1
A. v. B.
July 1631, Mor. 8969;
Bailey v. Silverton Hill,
31 Jan. 1621, 9008; Stair, b. 4. tit. 38. s. 23.; Ersk. B. 4. t. 1. s. 8.; Kames' Elucid. art. 1. p. 2;
Jack v. Halyburton,
1743, Mor. 9003;
Sinclair v. Stark, Jan. 1828
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Respondents.—1. The decree obtained by Baird on 19th July 1786 was clearly a mere decree of certification contra non producta in absence. The summons was a summons of simple reduction, raised on the ground that the disposition to the respondents' grandfather had been granted collusively, and without value. It contained no allegation of forgery, or conclusion for improbation; and the extract decree bears that “the defenders still failing to compear, his lordship granted certification against the defenders for not satisfying the production.” The mere circumstance of a procurator for the defenders having taken the summons to see could not make the decree pronounced a decree in foro, as the production was not satisfied, nor even a day taken to satisfy it, and no farther appearance was made.
As to the second decree, the Lord Ordinary observes
_________________ Footnote _________________
1 Bank. b. i. p. 186; Ersk. b. iii. tit. 7. s. 16.
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“The defendants say that it was not a decreet in absence, in so far as appearance was made for all the parties, and the production satisfied. There may be some doubt on this point, according to the principles held at that time. But as there was no discussion on the merits, and no proof taken, it rather appears that it must be held that it was a decree in absence.”
There are not any principles which were recognized at the time referred to which should render it more a matter of doubt then than now that this decree was in absence. Mr. Erskine says, “By the usage of Scotland litiscontestation cannot be formed without extracting an act or warrant by which a proof of special facts is granted to either party, or to both.” “As there is no room for supposing any quasi contract formed betwixt the parties, where the defender, who is one of them, does not appear in judgment, therefore, in that kind of litiscontestation which is made either in absence of the defender, or where, after his appearance, he withdraws or passes from it, (which any defender may lawfully do before litiscontestation, if he have offered no peremptory defence,) the decree given forth in the cause is, in the opinion of Lord Stair himself, considered barely as a decree in absence.” The same doctrine is laid down by Bankton and by Lord Stair, and is confirmed by the decision, Chirurgeons of Glasgow v. Reid, the report of which bears, that “by the regulations of 1672, chap. 19, a decreet is not understood to be in foro, unless appearance be made for the party, and defences proponed;” so that a decreet of suspension was found
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A point more necessary to be attended to is, that the decree of 27th February 1788, on which it is evident the appellants must mainly rest as their title to exclude, and which seems to have been chiefly in the contemplation of the Lord Ordinary in his note, is to be considered as a mere simple decree of reduction in absence, and has in no respect the force of a reduction-improbation.
The summons on which it proceeds no doubt appears to have libelled, pro forma, that the disposition and sasine in favour of the pursuer's grandfather were false and forged, and to have concluded that the same should be reduced, improved, &c.; and on this summons, if the production had not been satisfied, decree of certification contra non producta might have been obtained, as in a proper improbation.
But, in point of fact, the production was satisfied; and this being done, the appellants' authors had three courses open to them to pursue:—1st. They might have taken an order on the defenders in the action of reduction-improbation to abide by the writs as genuine; and if this order had not been complied with, then the appellants' authors might have obtained
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This last was the alternative which the appellants' authors adopted. The extract-decreet produced shows, that after the production was satisfied the whole proceedings were at the instance of the private party alone, and on the motion of his procurator, without any farther appearance being made for the King's advocate. The motion for great avizandum, on 19th January 1788, was made by the procurator for William Hay alone. The petition to the Inner House, praying for a remit “to have the reasons discussed,” was presented solely in his name; and when the remit was granted, “Mr. James Grant, procurator for the pursuer” William Hay, “was the only party who resumed the libel” before the Lord Ordinary, “and craved his lordship would sustain the reasons of reduction,” which was done accordingly, and decree pronounced “conform to the conclusions of the libel.”
That the appellants' authors, after the production was satisfied, could not obtain a decree as in a process of improbation without adopting one of the two methods
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Thus also, in the cases of Dunbar against his vassals, and Earl of Lauderdale against his vassals, “it was “sustained that the defender had produced sufficient to
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By the law of Scotland a decree obtained in absence, although against a party of full age, and valens agere, may in the ordinary case, unless the challenge has been barred by special circumstances (of which afterwards) be opened up by reduction at any time within forty years. This rule of the Scots law has sometimes been remarked upon in the House of Lords as appearing rather anomalous to English lawyers, who did not fully understand in what manner a decreet in absence in the Scotch Courts is obtained; but it was never doubted, so far as the pursuers know, either in the House of Lords or elsewhere, that such was actually the rule of the law of Scotland. In England it is believed that no decree is pronounced without the case undergoing some investigation and consideration on the part of the judge; so that it may be highly proper that an English decree, though in absence, should partake somewhat of the nature of a res judicata. But in Scotland, where a pursuer, if his opponent, from whatever cause, whether sickness, absence, infancy, or poverty, is prevented from appearing, may obtain as a matter of course, without inquiry or investigation, any decree which he chooses to ask, it would be highly dangerous and unjust to allow that decree either to have, or easily to acquire, the force of a res judicata against the defender.
The Lord Ordinary says that he “is humbly of opinion that though by our law a decree in absence may be opened up to the effect of inquiring into the merits of it, the demand must be made debito tempore, within some reasonable time.” But if the period
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If the period were to be held to be less than forty years, it is impossible to see that the effect of this rule would be any thing else than to introduce a new and a shorter prescription, unknown in the law of Scotland. But all prescriptions, whether long or short, are limited to a certain number of years; and the question arises, to what number of years is this new prescription to be limited, seeing there is no statute or rule of the common law to fix it to any thing else except the period of the long prescription? To say that it is to be limited to a reasonable period is to fix it at the most unreasonable of all periods, for no man can tell what it is.
But farther, a decree of certification, such as that obtained by Baird in 1786, pronounced in an action of simple reduction, is only good in a question with the particular debt or title in virtue of which it was obtained. The writs called for remain valid as against all the world besides, and even in a question with the particular right in virtue of which certification was obtained, that certification has effect only “aye and until the writs called for be produced.”
Mr. Erskine says, “Simple reductions, where improbation is not also libelled, are now seldom made use of, because the certification in these is only temporary, that the deed called for by the pursuers shall be held as void till it be produced. In consequence of certification
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Again Mr. Erskine says, “Decrees in absence of the defender have not the force of res judicata against him; for where the defender does not appear he cannot be said to have referred his cause to the decision of the Court, in virtue of the contract implied in litiscontestation. Vide supra b. 1, s. 69, 70, which is the true ground upon which a decisive sentence becomes final. The defender therefore may be restored against such decree; but if he was personally cited, he must first make payment to the pursuer of the costs he has incurred in recovering it.”
Lord Stair says, “Decreets of Session, in foro contradictorio, cannot be reduced upon what was proponed and repelled, or competent and omitted, which doth not extend to emergent reasons, or such as are new come to knowledge, but in that case, or when the decreet is in absence, simply or by the defender's passing from his compearance before peremptors proponed, subsequent reductions will be sustained upon distinct reasons, as in other rights.”
The same doctrine is laid down by Bankton, and is confirmed by the following amongst other decisions. In Sutherland's Trustees v. Lockhart, &c., an objection,
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“That where a decreet in absence had been preceded by no personal citation, unless the pursuer had, by the authority of the judge, intimated to the defender his resolution of making a reference to oath, it was competent, not only to the creditors, but also to the representatives of the defender, to bring it under challenge at any time, and that it would be necessary for the pursuer to support the decreet by the same evidence which would have been required if appearance had been made for the defender.”
As to the rule (also noticed in the case just quoted), where a party has been personally cited, and afterwards dies without challenging the decree, the respondents will immediately have occasion to speak to it.
3. In calculating the prescriptive period within which the decrees founded on by the appellants may be challenged, the minority of the parties in right for the time to bring that challenge should be deducted on the following grounds: 1st. That minority is equally applicable to the prescription introduced by the statutes 1469 and 1474 as to that introduced by the statute 1617, except that under this last statute the express burden of proving forty years majority is laid on the
Page: 125↓
The act 1469 enacts that all creditors by obligation shall follow forth their right, and take document upon it within forty years, otherwise that the right shall prescribe. The act 1474 merely declares that the first-mentioned act shall extend to obligations made prior to the date thereof, as well as to subsequent obligations. These acts do hot apply to heritable rights, which cannot be lost by the negative prescription, unless acquired by another party by the positive.
The argument of the appellants that the respondents have lost their right of action by the negative prescription, in reckoning which they say minority is not to be deducted, goes to this, that although a feudal progress by charter and sasine for forty years would not give the appellants a prescriptive right (because there minority must be deducted), yet they have a prescriptive right by the decrees founded on, which are thus better as a title to lands than charter and sasine would have been. This, however, will not do. The decrees bear on the face of them to be decrees of reduction of a disposition and sasine of the lands of Auchenstarry, and the only prescription which can be pleaded is that introduced by the statute 1617, chap. 12, which declares that the years of minority shall in no ways be counted, but only the years during which the party prescribed against was major, and past twenty-one years.
There is no authority for the argument that minority is not to be deducted in reckoning the years of prescription under the statute 1469. Minority falls to be deducted
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4. The next question is, what is the effect of the alleged sales and transferences referred to by the Lord Ordinary in barring the present action, supposing it to be otherwise competent?
Here it is to be recollected, that the present question comes before the House on a sort of preliminary or prejudicial plea as to the validity of the decreets of 1786 and 1788, as forming a title to exclude; and that the production has not been satisfied, or ordered to be so, so far as regards the titles alleged to have been made up or granted subsequent to these decrees. These latter titles are not therefore regularly before the Court, and, judicially, this House does not know that such sales and transferences as those referred to by the Lord Ordinary ever took place, or what was the nature of them, or the particular circumstances with which they were attended. It is therefore extremely difficult to see how the alleged fact that sales and transferences have been made, can be taken into account at the present stage of the cause in judging of the title to exclude, founded on the decrees, which alone have been put into process to satisfy the production.
Apart from this, however, the respondents apprehend that the doctrine laid down by the Lord Ordinary upon this part of the case is a new doctrine.
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The question as to whether the action is barred by the mere lapse of time, is quite different from the question, whether it is barred by the sales and transferences referred to by the Lord Ordinary, who seems to a considerable extent to mix up these questions together, for he says, that, “to give this the least colour of justice, the claim must be made within such time as to render it reasonably possible to restore both parties.” If this were a correct view, then the question would not be, what time has elapsed since the date of the decrees, but what particular circumstances have in the meantime intervened; and can both parties be restored to the same situation in which they were? The whole sales and transferences founded on might have taken place within one year, as well as within twenty years; and, on the other hand, twenty years, or even a longer period, might have elapsed without a single sale or transference being made, or any other circumstance occurring to prevent parties from being placed in the same situation in which they were at the date when the decrees were pronounced.
The mere lapse of time, therefore, if no prescription be run, has nothing to do with the matter at issue. If the respondents are not entitled to be heard now on the merits of the decrees, they could not have been heard within twelve months after they were pronounced, provided the subjects had passed into or through the hands of singular successors.
This doctrine of the Lord Ordinary, which, it will be particulary observed, is not founded upon, and does not assume homologation of any kind, but mere acquiescence in the acts of the opposite party, cannot be
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The Lord Ordinary founds the view which he has adopted on the single case of Campbell against Graham's Representatives, 5th December 1752. The respondents do not think it too bold to say, that even if this case were precisely in point, it could hardly be a sufficient authority on which to found a general rule of this kind, so contrary to the principles of our law, and to the authority of other decisions. It is worthy of remark
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The report is in no view very distinct or satisfactory. The case may have contained, and most probably did contain, specialties which do not appear from the report. For example, it is not said whether the minute of sale contained
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In the present case it will be recollected that there was no certification obtained as in a reduction-improbation, which is one point of difference between this case and that of Graham. A second point of difference is, that here the pursuers' ancestor stood vested by sasine on the face of the records, open to all the world, as the feudal proprietor of the lands. Any person, therefore, purchasing from William Hay,
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The minute of sale most probably contained an express clause of irritancy, and such a clause was at all
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The Lord Ordinary proceeds chiefly upon the hardship of opening up the decrees, when it is no longer reasonably possible to restore both parties to the situation in which they were, and when “the means of contradicting” the respondents' claim may probably be lost. Here also the fact that the pupil's lands were in the present case evicted from him gratuitously is of importance. Mr. Erskine says, “Where, from after accidents, restitution cannot be complete on both sides, a distinction must be made between voluntary and necessary contracts. In voluntary the minor ought to be restored fully, though the other party who had it in his power not to have contracted should be a sufferer, since it is for the benefit of minors that restitution was intended. Thus a minor who is restored against a sale cannot be compelled to pay the price to the purchaser, unless in so far as it has been in rem versum.”
That it was quite competent for the appellants' authors to have led a proof, although in absence, appears from certain of the authorities already quoted as well as from any others. Thus, in the case of Henderson, the cerfication which the Court granted in the event of a tutor ad litem not being appointed was, not that they would decern, but that they “would grant proof” without farther delay. Lord Bankton says,—“A pursuer sometimes, to strengthen a decree in absence, leads a proof, and for that purpose extracts an act;
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Thus in sundry cases, in January 1674, the lords found that a minor non tenetur placitare” in a reduction of his father's rights; but that this did not “hinder the examining of writer and witnesses ex officio, to lie in retentis, lest the direct manner of improbation perish medio tempore;” only, “the debating the reasons, or advising the said probation, must stop and lie over till majority.” Again, in Kello against Kinnear, it was held that a minor was not obliged to defend a reduction of a comprising led by his father, and said to be extinguished by intromission, but that “witnesses may be examined to prove possession, that the depositions may lie in retentis till majority.” In like manner, in Gordon against Farquhar, the defence of minor non tenetur was sustained, although it was pleaded that the action was founded on the ancestor's fraud; but the Court allowed the pursuer to lead a probation by witnesses, to lie in retentis.” It is needless, however, to multiply authorities to show that both by the ancient and modern practice of the Court it was quite open for the appellants' authors to have led a proof by witnesses (in so far as parole testimony was competent), although in absence of the pupil, and that in fact it was their duty to have done so.
It thus appears, that if the situation of the appellants be at all different or more disadvantageous now than it was when the decrees challenged were pronounced, this is owing to the fault or omission of their authors themselves, and therefore that they are not entitled to found on that circumstance.
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But in fact the plea, that the respondents are barred by the sales and transferences which have taken place from challenging the foresaid decrees, is contrary to the whole current of authorities. 1
_________________ Footnote _________________
1
Respondents' Authorities.—
Fraser v. Fraser,
Feb. 1728, Mor. 12194;
M'Donald v. Common Agent in ranking of Kinloch,
4th Feb. 1790, Mor. 12199;
Nicholson v. Macleod,
Nov. 23, 1810, Fac. Col.; Bankton, b. iv. tit. 23, sec. 10;
Little v. Graham,
4th Feb. 1826, 4 Shaw and Dunlop, 424;
Lord Barnbugil v. Hamilton,
12th Feb. 1567, Mor. 8915;
Earl of Roxburgh v. Chisholm,
Feb. 1688, 2 Supp. p. 116, 187;
Ballantine v. Daylell,
4th and 19th Dec. 1695, 4 Supp. p. 287; Stair; Erskine i. 7, 13; i. 7, 34; i. 7, 38; i. 7, 43; vide M. 9056, 9063, 9084, &c.;
Countess of Kincardine v. Purves,
7th Jan. 1698, Fount. Fol. Dict. v.1. p. 584; Bruce, 24th Jan. 1577, i. Fol. Dict. 579;
Ker v. Hamilton,
25th Feb. 1613, M. 8968;
Lockhart v. Lockhart,
25th July 1626, M. 8958;
Baron v. Ilarvie, 20th July 1626;
Fleming v. Forresters,
17th July 1661, i. Fol. Dict. p. 586;
Aitken v. Hewat,
8th Jan. 1628, M. 9907; Durie, p. 324, M. 8908;
Jack v. Halliburton,
1743, M. 9003; Banatyne, 14th Dec. 1814, F. C.;
M'Turk v. Marshall,
7th Feb. 1815, F. C.;
Agnew v. Earl of Stair,
&c. 1 Shaw's Appeal Cases, 333; see also Rankin, May 31, 1821, 1 S. & D. 43; Sinclairs against Stark, Jan. 15, 1828, F. C.; Fac. Coll. ut supra, p. 382; ibid, p. 381; Bank. iv. 23, 11;
Maule v. Maule, July 7, 1831; printed papers, p. 21; Erskine, iii. 7, 8; Kames' Statute Law, p. 291; Mackenzie on the Statutes, p. 67; vide Bankton, iv. 45, 14; Select Decisions, No. 27, p. 30; Fol. Dic. vol. i. p. 589: Erskine, 1. 7, 41;
Henderson v. Knockhill,
1st July 1628, Mor. 8969; Bank. b. iv. t. 36, sec. 6; 3 Supp. 39; Kello against Kinnear, 5th Jan. 1671, Mor. 3066; Gordon against Farquhar, 4th Feb. 1695;
Lindsay v. Ewing,
15th Jan. 1770, Mor. 8997;
Agnew v. Stair,
1 Shaw's Appeal Cases, p. 333.
Page: 135↓
In 1807 Henry Sinclair the younger died, leaving three daughters his heirs portioners, who are stated to have been in poverty, and the eldest of whom attained majority in 1818, the youngest in 1826. In July 1832, and not before, they brought the present action, to set aside the decrees obtained reducing the title, upon
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Having stated the proceedings and judgments up to the commencement of the present action, it is fit that we now attend to the manner in which the property has been dealt with, under the authority or supposed authority of these judgments. In 1788, a year and a half after Baird's decree of reduction, his son served heir to him, and conveyed to William Hay, son of Henry Hay, the elder Sinclair's author, the debt adjudicated to him, with the decrees he had obtained. William Hay having in that year obtained his decree of reduction, obtained infeftment of the estate, and soon after sold the property to Cowburgh, who was infeft, and enjoyed it from April 1788 to July 1793, when he sold it to Dr. Lapslie; and his son and heir, W. Lapslie, being infeft in it in March 1803, conveyed it to Mr. Campbell, who was also infeft. In 1820 he executed a trust disposition in favour of some of the defenders in this suit (now the appellants), and these sold the estate in 1824 to one of the others, Captain Garthshore, who has possessed it ever since, and improved it; so that all possession in the pursuers (now respondents), or those under whom they claim, had ceased forty-four years before they brought their action. There had been no less than five conveyances to purchasers for value, and three infeftments taken by heirs to it; and it had thus passed from hand to hand no less than eight times without any interruption by purchase or by descent, while all have dealt with it and enjoyed it, and laid out money in its improvement as well as transfer, without any doubt of the title, that is of the decrees upon the
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This statement, though somewhat long, presents for our consideration a very simple case, as far as the facts are concerned. An estate is sold in 1775, and possessed for eleven or twelve years by the purchasers. The conveyance is set aside by two decrees, in absence, in 1786 and 1788, which the vendor's creditors and heirs obtained. At the date of these decrees the purchaser's heir is a minor, and for ten years afterwards. He then attains majority and lives nine years, and dies leaving infants, one of whom attains majority in 1818 and lives twelve years, when at length she brings, with her co-heirs, an action to set aside the decrees of 1786 and 1788, and all the titles made to purchasers on the faith of them during forty-four years; so that more than forty years elapsed since the decrees, more than thirty since the first minority ceased, and a party valens agere came in esse, more than twenty, during which all minority was out of the question, and a party valens agere existed; and about eight or nine, during which, without any interruption or interval, all the parties concerned were of full age. It is of course to these circumstances that the learned Lord Ordinary refers when he speaks of setting aside those decrees “post tantum temporis.”
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I have termed the decrees decrees in absence, for I can hardly consider that any question now remains as to whether they were in absence or in foro contentioso. The parties were served, and in the action of 1788 at least, the reduction-improbation, personally, for the extract bears that they were all “personally apprehended.” But the Lord Ordinary assumes that they made no appearance beyond satisfying the production, and his interlocutors proceeded upon the footing of the decree against them being in absence. Two questions are therefore here raised, and both of the first importance. 1st. Within what limits is the right of being reponed against decreets in absence competent to parties defenders? 2d. When the negative prescription is set up as a defence, are the years of minority to be deducted?
These are the main and fundamental questions which this case raises; but it also gives rise to a further discussion upon the peculiar effects of decrees in actions of reduction and improbation, and upon the kind of prescription which is applicable to decrees.
1. The peculiarity of the Scotch law and practice, which allows proceedings to go on and judgment to be obtained against a party not present or represented in Court, gives rise to the chief difficulty in this case. In England no step can be taken till the defender appears, and if he cannot be secured or made to come an outlawry and sequestration are resorted to, so that his property is secured, and his personal rights forfeited as the penalty of his contumacy; but the proceeding stops there, and the suit can extend no further, and can bear no fruits. This has oftentimes been lamented among us, but the difficulty of finding a course at once consistent with protecting the safety of the one party
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The authorities however, and the cases decided, appear to recognize a sufficiently ample right of opening decrees in absence. Mr. Erskine regards them as having none of the effects of decreets, and though giving ground for the plea of res judicata, yet only giving ground for it while unchallenged. Then the cases seem all to recognise the right of setting them aside and going into the merits. But I can hardly say that it any where very clearly appears that this right is absolute and independent of all circumstances; in other words, that whatever length of time may have elapsed, whatever citation of the party may have been had, whatever dealing with the property may have taken place, the party may still come in at the eleventh hour, and if he only proceeds before the years of prescription
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To illustrate the imperfection of the information which I have been able to obtain from the books upon this matter, I may take the question of personal service. I cannot find it distinctly laid down how far that important ingredient qualifies the general proposition of the defender's right to be reponed. Yet shall it be said to make no difference whether a decree has passed wholly behind a man's back, and without his knowing that any action had been brought against him, or that
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On the other hand, they who deny the utmost extent of the right contended for have great difficulty in finding a middle ground whereupon to take their stand. They cannot maintain so absurd a proposition as that decrees in absence have the same force with those in foro. Even where there has been service on the defender, and therefore wilful default by him, they cannot maintain that he is bound as much as if he had continued in court till the judgment; but they say, that after being served, and suffering judgment to pass without litiscontestatio, he shall only be let in to reduce the decree, if he shows that he is entitled; that is, I suppose, if he explains his default, and comes within a reasonable time. But then I do not find that the cases speak of explaining the default; I find none of them mention time; and the very existence of the negative prescription, at least if we suppose it applies to decreets, would seem to exclude any reference to a shorter period than forty years. It may be fit to consider these cases a little more nearly. The contention of the appellants is, that each case depends on its circumstances, and that according to these the title of the defender to be let in must be judged. The standing by and seeing the property enjoyed, improved, and conveyed from hand to hand, the rights acquired by third parties for valuable consideration, the lapse of time through his
Page: 143↓
Millie v. Millie appears to be a strong decision. It is reported in the Fac. Coll. and in the Dictionary 12176, and was pronounced in 1801, Nov. 27. The decree excepted to was one of absolvitor in an action where the pursuer had not complied with an order to give in a condescendence, but made default, and ten years afterwards brought another action. The defence of res judicata was repelled, and the Court, admitting the “difficulty of opening up a decree,” went upon the party's poverty and his agent's neglect to put him upon the poor's roll, which was said to be sufficient ground for calling in the “supereminent power of equity vested in the Court.” Upon this I must take leave to observe, that unless decrees like this are totally unlike all others, no such power can exist in any court, which intends to make its proceedings serious and regular; for it enables any man who has a negligent attorney or a light purse to harass his adversary with a suit, withdraw and suffer judgment to go against him, and then to escape from the force and effect of that judgment. Nor could a like privilege be refused to a defendant whose case is much stronger for such relief. Nothing like the English nonsuit is here to be seen, for it was a decree.
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It is however to be remarked upon this case, that it rather favours the appellants' contention, by indicating that mere absence is not sufficient for allowing a decree to be opened, because the only reason assigned by the Court is the poverty of the party who did not appear, which seems to show that each case is to be determined on its peculiar circumstances, and that some ground for being let in to question the decree must be stated. In Clark v. Newmarch, 17th Nov. 1825, 4 S. & D. 186, the same ground of poverty was taken by the Court, and Millie v. Millie was cited. Although repeated appearances had been made for the defender, and a judgment given upon the merits, the Lord Ordinary here held the decree to be in foro; and in altering his interlocutor, I do not observe that the Court disputed this position, but relied on certain proceedings in England, and on the party's poverty at the time, when she ought to have lodged her duplies, for she had answered fully.
In Smyth v. Nesbit, 9th March 1826, 4 S. & D. 538, there had been a decree of constitution, and an adjudication led on it. The defendant had appeared and taken the process to see, but lodged no defences. The only resistance made to a reduction of these decrees, brought eight years afterwards on the head of absence, was that he must first pay the costs, and which the Lord Ordinary held that he was bound to do.
Kirk v. Kirk, 6th July 1827, 5 S. & D. 905, was a similar case, and the party was let in to question the decree without paying the costs, in consideration that
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Campbell v. Graham, referred to in the Lord Ordinary's learned and elaborate note, was a decision in 1752, and is in the Dictionary 9021, and taken from Lord Kames' Sel. Dec. As far as regards the point of minority, I shall hereafter consider this case, but it is material also for our present purpose. Graham, in 1728, sold the property in question to Jardine, and afterwards obtained a decree of declarator of irritancy of the sale on nonpayment of the price, and this was obtained in absence. Two years after the sale he conveyed to trustees for his creditors, and in 1732 they sold to Cutlar, who, to secure his title, brought a reduction-improbation against Jardine's representatives, and had certification in 1735. After fifteen years from this time, and above twenty from the declarator of irritancy, Campbell, as representative of Jardine, brought a reduction of the declarator on the grounds of absence as well as minority, and also a reduction of the trust deed, and the subsequent proceedings in the reduction-improbation. The defence is stated to have mainly turned upon the certification in the latter action; but this is expressly said to have been disregarded by the Court, who also held the minority set up by the pursuer as unimportant, and decided against him, solely upon the ground of Graham having sold “trusting to his decreet of reduction, though “in absence,” (which of course must mean the decreet in the declarator, for he sold before the reduction-improbation, and that was brought by the purchaser,) and “because the other party could not be reponed against it when it was no longer in Graham's power to dispone;” and they sustained the defence, that the
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Upon this case several observations arise. Undoubtedly it supports the Lord Ordinary's interlocutor; but does it not, as reported, go a great deal farther? and does it not go too far? No mention is made whatever of the length of time; the whole is rested upon the decreet of reduction though in absence, and a subsequent sale of the property; nor is it said that the party was cited in the declarator, and it is confessed that he was a minor. Is it then meant to be contended, that if a person brings an action and obtains judgment in the defender's absence, and in his entire ignorance of the proceeding—he being, for example, abroad,—that decreet becomes final, conclusive, and binding, provided he sells to another party before any reduction is brought? So extravagant a proposition is untenable, and yet it is the very point decided in Graham v. Campbell. Even personal service would not perhaps much alter the case, should this be found to have been part of it, because citing a minor seems a nugatory act on all principle, and on none more than this, minor non tenetur placitare super hæreditate suâ. But beside the inaccuracy of the view which the decision takes of the question of minority and reponing, as I am afterwards to show, there is an apparent inaccuracy in the report of this case, which considerably weakens its authority. The decree obtained by the vendor soon after the sale was in a declarator of irritancy, and yet the Court is always made to describe that as “the decree in the reduction.” I therefore at first thought that they referred to the decree of certification in the reduction-improbation; but then they expressly
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The first question then to which it is desirable that the attention of the learned judges below should be directed, is the general effects of a decree in absence, whether the right to reduce it arises merely from its being in absence, or depends upon the circumstances of the case; that is the laches of the party, the intermediate dealing with the property, and the time
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I have invaried right, in both Lord Stair's own work and in other quarters, for some qualification of his general position respecting the high nature of the certification contra non producta, and even of the decree reducing writs actually produced, for his dictum in b. iv. t. xx. s. 4. extends to that also; and I can nevertheless have no doubt that two qualifications must be introduced; there must have been personal service, or some equivalent knowledge, and there must be no minority in the case. But for this being assumed, this absurd consequence would follow, that a person's title would be destroyed behind his back by an irreversible decree, or the title of an infant would be destroyed while unable to protect himself. In the present case there is no proof of personal service of the first action, but the defenders appeared by this conveyance and took out the process to see; in the second action the parties were served, appeared, and satisfied the production; but in both suits the real party was an infant under twelve years old.
2. But supposing the decree to have no other privilege than belongs to any decree in absence, and that the forty years prescription can alone cover the defect of litiscontestatio, we find that the defender was not of age till ten of the forty-four years had elapsed, and another minority afterwards occurred of eleven years about 1807. The question then is, Whether or not these periods of minority, one or both, are to be deducted? and I confess that I have much less doubt upon this point than upon any other of the case.
Before adverting to it, however, I must touch upon the case of Campbell v. Graham, to which the Lord Ordinary refers. At first sight it may seem to exclude
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But upon what ground, it may be asked, does the application of the negative prescription to decrees rest? If upon the statutes 1469, c. 28, and 1474, c. 54, these refer to obligations; and although it seems difficult to bring a judgment within this term, yet I am not insensible to the force of the citation from Voet, “omnium omnino actionum,” &c. Does this, however, go beyond all grounds of action? But if these statutes do not serve the appellants' purpose, they must fall back upon the Act 1617, on prescription of land rights, and then there can be no doubt, for the years of minority are expressly excepted by the provisions of that act. But suppose them entitled to rely upon the older statutes, it appears still that we must imply a similar exception; the ground of prescription is adverse possession long acquiesced in, and abandonment thence presumed of any incompatible title. Now is not the case of minority of a person not capable of contesting the adverse claim almost necessarily to be understood as excepted from this rule? So thought Sir G. Mackenzie, who says in his Observations on the
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I must however observe, that the case appears to me more to fall within the Act 1617, as that of a land right. I think there is force in the argument that such a right cannot be lost by the negative unless gained by the positive prescription; but at any rate I conceive that the old acts have always hitherto been understood to apply to personal obligations and rights only.
Although, however, I strongly lean towards the construction of the respondents upon this point, yet I am desirous to have it reconsidered below, because it is a case of the first importance. There seems to be no decision either upon the question, what course of prescription decreets suffer and run, and under what authority? or upon the question, in what manner years of minority are to be deducted from prescription under the acts 1469 and 1474? Both of these points deserve consideration, although for obvious reasons your lordships would not desire the learned judges below to deal with them, except so far as they may appear to them involved in the present case.
One consideration may perhaps be mentioned under this head. Minors have, by the Scotch as well as the civil law, a right of restitution in integrum, that is, they may, within four years after attaining full age, set aside all deeds executed and contracts made by them, and indeed all acts done in any way by them, on showing them to have been detrimental to their interests. Now
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It is possible that some argument may be raised upon this rule of law, and I have considered it with a view to its effect against the respondents' construction; but upon the whole it appears to me insufficient to rebut the force of the reasons in favour of deducting the years of minority. The favour to minors appears in some instances to have been extended very far indeed by the Court. Lord Stair cites a case of Fulton v. Stewart, 1691, in which, because the institution is for children, they were not held bound by decrees; but so absurd a decision was afterwards altered, as might be expected.
In remitting this case to the Court below, with directions to consult the other judges, I have thrown out these observations with a view of pointing out to these learned persons the difficulties which appear to encumber the questions raised, and also for the purpose of showing the parts of the case where almost alone the doubt seems to lie; for it is a great satisfaction to me that this doubt is rather upon the branch of the case which may be said to be peculiarly adapted to the cognizance of that learned body. The difficulty I feel in dealing with the cause turns almost entirely on matters of Scotch law, and chiefly on points of practice—matters and points touching which the principles are wholly different from the law your lordships are used to administer in England. The effects of decreets in
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The House of Lords ordered and adjudged, That the cause be remitted back to the First Division of the Court of Session, with an instruction to the judges of that Division to order the matters of law in question in this cause to be heard before the whole judges, including the Lords Ordinary, and to pronounce judgment according to the opinions of the majority of such whole judges.
Solicitors: Archibald Grahame — Alexander Dobie — Solicitors.