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Scottish Court of Session Decisions >>
Alexander M'Adam v Alexander Earl of Galloway. [1766] Mor 2755 (17 January 1766)
URL: http://www.bailii.org/scot/cases/ScotCS/1766/Mor0702755-095.html Cite as:
[1766] Mor 2755
In Competition, Pleas are receiveable by Exception, which otherwise would be Competent only by Reduction.
Alexander M'Adam v. Alexander Earl of Galloway
Date: 17 January 1766 Case No. No 95.
Found incompetent, by an action of mails and duties, to set aside the right of a person in immemorial possession, and producing a sasine. Reserved to insist in a reduction of the defender's rights.
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In 1678, Alexander, then Earl of Galloway, granted an obligation to Henry Dun, binding himself to denude, in his favour, of a piece of land called Belscroft, upon payment of L. 400 Scots.
In 1763, John M'Adam, the great grandson of Henry Dun, granted bond to Alexander M'Adam, his son, who led an adjudication against him, as charged to enter heir in those lands to Henry Dun; and, upon that title, pursued an action of mails and duties against the tenants.
Compearance was made for the Earl of Galloway, who produced a sasine in the lands of Belscroft, in 1684, proceeding on the precept of Henry Dun; and contended, That, as he and his predecessors had possessed the lands immemorially, the process was incompetent, till his titles should be reduced in a proper action.
Answered for the pursuer The adjudication is a sufficient title against the tenants, Stair, IV. 22. 7. They are the only defenders called. The compearance of the Earl, indeed, produces a competition, but it is a rule of law, that all competitions imply mutual reductions. Nor is the pursuer under any necessity of instructing the right of the predecessor, to whom his father was charged to enter. The only title produced by the Earl, is a sasine upon the precept of that very predecessor, whose right he cannot object to, without cutting the branch upon which he himself stands.
Had he produced a disposition indeed, from Henry Dun, he must have been preferred to the mails and duties; but he produces no more than a sasine; and a sasine, without its warrant, cannot avail in a competition of real rights; Stair, II. 3. 19.
Replied; Upon the footing of the infeftment 1684, the Earl has the benefit of a possessory judgnment, for which purpose, the production of a sasine is sufficient; Stair, IV. 26. 3. and 4.; Bankton, II. 1. 33. p. 512. and IV. 24. 49.; Erskine, IV. 1. 50. And it makes no difference that the summons was executed against the tenants only. Still the Earl was entitled to compear for his interest.
When a process of reduction is brought, it will be time to consider, whether the personal faculty of redemption granted to Henry Dun be not lost by prescription.
‘The Lords sustained the defences, and assoilzied from the process of mails and duties, reserving to the pursuer to insist in a reduction of the defender's rights, and to the defender his defences, as accords.’
Act. M'Queen, Crosbie.Alt. Lockhart.
Fac. Col. No 29. p. 247.
