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Earl of Queensberry v Earl of Annandale. [1680] Mor 10796 (25 June 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor2610796-086.html Cite as:
[1680] Mor 10796
What Title requisite in the Positive Prescription.
Subject_3 SECT. II.
Title requisite to Heirs.
Earl of Queensberry v. Earl of Annandale
Date: 25 June 1680 Case No. No 86.
It was found, that the sasine of an heir who did not himself possess the whole forty years, never being renewed to his successors, who all of them continued to possess as apparent heirs, was no sufficient title of prescription.
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In an improbation pursued by the Earl of Queensberry against the Earl of Annandale, the pursuer excluding the defender with a decreet of certification obtained against his author in 1619, alleged against it, That it was null, because the Lord Crighton was only called thereto, and not Irvine of Bonshaw, in whose favours Crighton was denuded; 2do, That it was prescribed. Answered to the first, There needed no other be called but Crighton, for he was the immediate vassal, and he was not bound to know Bonshaw the sub-vassal; And as to the second, The certification in 1619 interrupted the prescription. The Lords sustained the certification in 1619, in respect the immediate vassal was cited; and repelled the prescription, because of the interruption produced: As also, the Lords found a sasine not sufficient without the precept of clare constat, its ground, albeit Annandale offered to prove they were forty years in possession by virtue thereof, unless they would say that he whose sasine it was lived and possessed forty years by virtue thereof; for the possession of his successor within these forty years would not make up the prescription, unless it be proved that that successor was likewise infeft: Yet the Lords, after the certification, found it relevant for Annandale to prove, that the lands controverted were parts and pertinent of the lordship of Johnston, and to Queensberry to prove they were a part of the lordship of Torthorrel, and allowed a mutual probation.
