Scottish Court of Session Decisions

Now the Lord Ordinary has held, upon an inquiry into the titles, that there is no doubt in his Lordship's opinion that the pursuer has made out that the lands of Hillhead are part of the £5 lands of New-milns, in which he finds that the pursuer has been infeft for the prescriptive period. And we have had all that could be said put before us by Mr Hunter against that Judgment; and I have not been able to find any flaw in the Lord Ordinary's reasoning and I entirely agree with him. But I think it right to say that I consider that there is really a shorter cut to the result at which the Lord Ordinary has arrived, and therefore I think it right to indicate what that is.

The instrument of sasine, referred to in the disposition which I have read, is an instrument which describes various portions of lands and ends up thus—“All which lands of Sheeplees, High Shott, Shotlands, and parts of the Muir of Aston-paffle, last above described, are now known by the name of Hillhead, and were sometime possessed by William M'Kay, tenant therein.” That instrument of sasine proceeds upon an extract registered disposition and deed of entail by Nicol Brown in 1827 and a retour of the general service of Thomas Brown as nearest and lawful heir of tailzie in general to the said Nicol, his cousin-german. Of course, if we could see that disposition and deed of entail I take it that it would probably contain a clause which would show us the name of the superior. But, at any rate, that is a small matter, as we have also got before us a charter of confirmation of 1832, which confirms that particular sasine, and that charter of confirmation is granted by the Marquis of Hastings, who, admittedly, was the predecessor of the present Earl of Loudoun, and, inter alia, it confirms the sasine of these very lands, ending up with the same description—“now known by the name of Hillhead, and possessed by William M'Kay, tenant therein.” We have also before us the fact that even that was not the first of it—that the same lands were confirmed, not by the same actual superior but by his predecessor in the titles, as long ago as 1814. But, at any rate, the later confirmation will quite do, because the prescriptive period will then end in 1872.

Now what is the effect of all that in law? Let us first take the position of Miss Brown. It is quite evident that Miss Brown never could have said against the superior that he was not the superior of these lands known as Hillhead, and possessed by William M'Kay. That really, I think, is the A B C of the law, and if authority was needed, ample authority would be found in the Earl of Breadalbane v. Macdougall, 8 R. p. 42. That being so, it being quite impossible for Miss Brown to have said that the lands possessed by M'Kay were not held from the Earl of Loudoun, what happens? Miss Brown gives a disposition of a piece of land which she describes as “a part and portion of all and haill the lands and farm of Hillhead sometime possessed by William M'Kay, tenant therein.” Now, therefore, there is identity of description. No doubt it goes on with a reference to the sasine, but I do not think that that reference to the sasine matters one way or the other—that is to say, that the pursuer's case does not depend upon the instrument of sasine. It does him no harm, but he does not depend upon it—he has got identity of description.

Accordingly, prima facie, anybody who takes upon that title is simply of course in the same position as Miss Brown was with regard to the lands of Hillhead sometime possessed by William M'Kay, and there is no question about it that she could not have contradicted her own superior's title.

What, then, is really the argument on the other side? The argument on the other side is that there may have been other lands of Hillhead which were held of another superior, and the way in which that argument is sought to be assisted is that by a critical examination of the various parcels of land described in the sasine of 1830, and an adding up of all those parcels and an attempt at situating them locally, the defender says that he has shown that the lands of Hillhead there mentioned cannot be the same lands of Hillhead as now possessed by him. Over all that sort of thing there is a certain obscurity. There always is a certain obscurity when you have to identify in modern titles descriptions which, when written, referred to a state of matters that has long passed away. Your Lordships are familiar with very many old titles in which the three merkland of so-and-so and the five merkland of so-and-so are all described, and not a single name used is a name that can in modern times be identified on the map. I do not doubt that the defender has been so far successful in this that he has thrown a sort of mist of obscurity over the precise identification of these lands. He has created a doubt as to whether these particular parts and portions of land enumerated specifice exactly correspond and are identified with the lands now known as the lands of Hillhead, and modernly as the lands of Gowan-bank. But that will not avail him unless he can show a little more. Miss Brown never could have said so, and although I think Mr Hunter was right in his point when he said that if he could show that

the lands of Hillhead as now possessed by him were a different set of lands of Hill-head from the lands of Hillhead of which Miss Brown had acknowledged the'superiority to be the superiority of the Earl of Loudoun, he was entitled to succeed, yet the onus was upon him to do so; and inasmuch as he has frankly admitted that he is not in a position to show that there were any other lands of Hillhead which were Held from another superior, then I am afraid if he cannot do that the pursuer has made out his case upon undoubted identity of description.

The case comes to be as simple as this. Miss Brown, holding the lands of Hillhead as possessed by William M'Kay, acknowledges in 1832 or 1814 that they are held from the Earl of Loudoun, and the prescriptive period goes on and finishes under that condition; then Miss Brown dispones a part and portion of the lands of Hillhead as possessed by the same M'Kay. That is identity unless you can show something else, and the only way in which it seems to me the defender could have prevailed in this case would have been to have shown us affirmatively that there were other lands of Hillhead which were held de facto from another superior. Then the question would have been, Were the lands in question the lands of Hillhead held from the Earl of Loudoun, or were they the lands of Hillhead held from the other superior. But when all he can do is to suggest that there may have been other lands which were held from another superior, and to fortify that suggestion by a more or less critical examination of the parcels of land which were supposed to make up the lands of Hillhead, he does not seem to me to do enough.

The thing can be tested in another way. I do not say this solves the case, but I ask myself, supposing that disposition had been in the old form instead of the abbreviated form allowed by the Act of 1874, and supposing the holding therein specified to have been an a me holding, to whom would the disponee have gone? I see no trace that he could have gone to anybody except the Earl of Loudoun, and he certainly could have got a perfectly good charter from him. It is not really suggested that there is anyone else he could have got a charter from. I think that is really the position at this present moment, and therefore I think, entirely concurring as I do with the Lord Ordinary in his reasons, that I find myself able to get at the same result by a somewhat shorter road.

Lord Kinnear—I agree both in the Lord Ordinary's judgment and also in the additional grounds for reaching the same result which your Lordship has explained.

Lord Pearson—I also agree.

Lord M'Laren was absent.