Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION III.

What Title requisite in the Positive Prescription.
Subject_3 SECT. XV.

Effect of the Positive Prescription. - Title of Prescription in Moveables.

Elliot of Arkleton, &c
v.
Maxwell, Fiar of Nithsdale

1727. January.
Case No. No 183.

A registered reversion found good against a party asserting an irredeemable right to the lands by the positive prescription, a having been in possession above 40 years upon a charter and sasine.

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Adam Cunningham of Woodhall, in the year 1633, was infeft by charter under the Great Seal, in the lands of Meikledale and Meikledale-hope, heritably and irredeemably. He conveyed these lands in the 1643 to Walter Scot of Broadhaugh, who was likewise publicly infeft; and, in the 1669, Scot conveyed to Elliot of Arkleton, who obtained also a charter from the Crown, with a novodamus; and upon these titles, the lands having been possessed by Arkleton as proprietor, ever since, till of late, that, upon the faith of his right, several creditors having lent him their money, the apparent heir brought the estate to a sale, for their payment; in the course of which process compearance was made for William Maxwell, fiar of Nithsdale, and for him pleaded, That Adam Cunningham's right was at first no more but a wadset, and that there was an eik to the reversion, made by contract betwixt the Earl of Nithsdale and Walter Scot the purchaser, from Cunningham, anno 1663, which eik was duly registrate; and that, therefore, the rights were all qualified by the reversion, even in prejudice of creditors and singular successors.

It was answered for the creditors and pursuer of the sale, That they had the benefit of a positive prescription, their authors having possessed for more than 40 years, viz. from the 1669, by virtue of charters from the Crown absolute, without any reversion, and without any document taken upon any letter of reversion; and, therefore, they were secure, both upon the words and intention of the statute, whatever action the reverser might have against Cunningham the granter of the reversion, or his heirs, or Scot who accepted of the right with the burden of reversion. The act expressly declares, “That persons possessing for 40 years without interruption shall only be obliged to produce a charter and sasine of the lands, or instruments of sasine, one or more, continued for the space of forty years.” Herein the law is positive, and makes no exception upon a reversion, registrate or not registrate, but excludes every claim other than falsehood. It is declared, indeed, in the act, that registrate reversions shall not prescribe; but if the matter be narrowly considered, it will be found, that nothing is meant but the negative prescription; for it is plain, the first part of the act, introducing the positive prescription of land-rights, is a perfect separate clause, from that which introduces the negative prescription of actions upon bonds, heritable bonds, reversions, contracts, &c. just as much as these two had been separate laws. The first clause is complete of itself, without any manner of exception, even as to reversions registrate; then comes the second clause, not by way of exception to the first, but as a new statute, “And sick-like, his Majesty statutes and ordains, that all actions, &c. shall be pursued within 40 years.” Then there is subjoined a particular exception as to reversions, “That actions upon reversions, engrossed and registrated, ought to be perpetual.” To fortify which, let it be considered, the other exceptions that are designed to be from the act in general, and not only from the negative prescription, are introduced in quite different terms: Thus, with respect to warrandice, the words used are, “Excepting always from this present act, all actions of warrandice,” &c. whereby, from the generality of the words, “from this present act,” it is commonly thought, infeftments of warrandice will not even be excluded by the positive prescription: So as to minors, it is declared in general, “That in the course of the said 40 years prescription, the years of minority shall nowise be counted.” And this variation of the expression, with respect to these two noted cases, which is done in a manner to relate to the whole body of the act, seems plainly to imply, that the exceptions with regard to reversions, only repected the negative prescription, and had no view to the positive. And there is good reason for making a difference; nothing was to he imputed to a person who had an infeftment of warrandice, that he did not sooner prosecute his right, he was not valens agere: And as for minority, it is protected by every law: But the reverser hath himself to blame, who did not advert the right that he had given, should not be inverted from its proper nature, which was easy to do, and his negligence ought to prejudge himself alone. This then is no exception from the clause concerning the positive prescription, but in relation only to the negative. For illustrating this, it was urged, That the registration of the reversion can be no stronger, than if prescription of the reversion be interrupted by action or order of redemption: And if it be made appear, that the action upon a reversion may in law be preserved from prescription, and yet the positive prescription of the land-right take place, no difficulty can arise from this exception. Now, suppose the reversion not registered, but at the same time prescription of the reversion interrupted by diligence against the granter, this would not stop the positive prescription; and yet, because of the interruptions, there was no negative prescription; it is apprehended the present case is just the same: The registration of the reversion has the same effect with a perpetual and daily interruption of the prescription against the granter and his heirs; but no effect upon the positive prescription of the singular successor, possessing by virtue of charter and sasine, absolutely conceived without any incorporate reversion.

2do, If this matter were otherwise, and registrate reversions good against the positive prescription, then it follows, that the common and universal opinion of all purchasers as to their security is imaginary; for here 40 years possession is no security at all; no purchaser can be secure without reading over the whole records from the 1617 to this very day, and so in all time hereafter; were it a hundred years after this, every such purchaser must go through the whole records from the 1617, because it is uncertain but at some time an author of the seller's may have granted a reversion, which must be effectual against singular successors to the day of judgment. The same must happen as to every creditor pretending to contract with a debtor, upon seeing in his person a connected progress of land-rights for 40 years; and so, in effect, there is an end of all commerce and security as to lands; for nobody will imagine it a possible thing, upon every occasion, to search over the whole records from the 1617; and, therefore, the interpretation of the law in that manner, seems to carry such difficulties along with it, that surely it never can go down, if the act admit of another sense or meaning, which, as is endeavoured to be made out above, it plainly does.

To the first it was replied, The exception pleaded upon, is not an exception from any particular clause, but from the act itself, and from the positive as well as negative prescription, as are all the exceptions subjoined:

“Reversions in corporate within the body of the infeftments, used and produced by the possessor of the lands for his title of the same,”

are such as every one must admit to be free from both prescriptions; and reversions registrate are joined in the same sentence and put upon the same footing. And there is good reason the positive prescription should have no place against reversions registrate, more than where engrossed and used by the possessor for his title, upon this principle, ‘That no man can prescribe contrary to a quality in his right.’ Now, the registers being designed for publication, every thing therein contained is presumed to be public, so that one possessing by virtue of a right, whereof there is a registrate reversion, is presumed to be conscious that his right is qualified, equally as if the reversion were engrossed; and in neither case will be understood to possess eo animo as absolute proprietor, without which animus there can be no prescription exclusive of the reversion.

To the second this reply was made, That it is highly reasonable a purchase made upon the faith of the records meet with all favour the law can afford it; but even at first view it must appear incongruous, that one purchasing contrary to the express admonition of the records, should plead favour, merely because it is a little troublesome to look them over. But let it be considered, no purchaser imagines himself safe, with a bare infeftment and 40 years possession, without going to the records; for one article, there being many sorts of interruptions, sufficient to stop prescription, not so easily found out as reversions though the records be searched back even as far as the 1617. There is equal difficulty in finding out infeftments of annualrent, which may be kept alive 100 years by minorities. Infeftments of warrandice will take place in many cases, a long time after the date of the infeftment, and the same in inhibitions and other diligences; so that to conclude, the rule is the same in reversions, as in other cases, that whoso pretends to purchase with safety must have recourse to the records.

“The Lords found, That the reversion being registrate in the register of sasines and reversions, does not prescribe.”

Fol. Dic. v. 2. p. 113. Rem. Dic. v. 1. No 92. p. 181.