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JUDGES.

1924.

Both cannot be correct. The pursuer says the sanctioned by the legal doctrine under discus- COURT deed is therefore intrinsically null. Nay," sion, then I reply, such is the very function oF SEVEN says the defender, "the only way of proving of prescription. It makes what would, apart which clause is correct is by an appeal to the from it, be a bad claim a good claim, and I Cooper trust disposition and settlement of Mr Scott. apprehend that it does so on wide grounds of Scott v. Without referring to that deed, an action of policy which are too obvious to need discussion Gill Scott. reduction must inevitably fail." And his at this time of day. It is manifest that, in January 18, argument proceeds thus: "The deed of entail the application of the doctrine, cases which is not probative evidence of what the settle- are hard, and results which may even be ment contains. One is not entitled, therefore, stigmatised as unjust, are bound to occur; to assume that the narrative there quoted is but I assume that it was deemed right to afford accurate. That can only be ascertained dehors the general protection and finality which the deed, viz. by reference to the trust dis- prescription confers, even though the doctrine position and settlement. There is no doubt may operate hardly in specific cases. On a a mark of interrogation against the deed of balance of expediency the doctrine can no doubt entail. It suggests doubts, but these doubts be completely vindicated. can only be resolved by production of the trust disposition and settlement. Therefore, there is no ex facie or intrinsic nullity in this deed, and it is now too late to challenge its validity." Such I apprehend, in rough outline, to be the defender's contention.

But, as we have been favoured with an elaborate citation of authority, it is right that I should advert to the institutional writers and to at any rate some of the decisions which were quoted in argument. In the first place, however, it is proper to turn to the Act 1617, cap. 12, in order to ascertain what is required as the foundation for prescription. All that is needed is a charter and sasine. If possession follows thereon for forty years, the Act provides that the possessor is secure against attack. I may add that a deed which is intrinsically null is obviously not equivalent to charter and sasine. That, however, is a later development. The Act says nothing of the quality of the title, but it is clear, having regard to the decisions to which I am about to refer, that the Courts, so far from regarding an intrinsically null deed as equivalent to charter and sasine, regard it as so many words inscribed upon paper which have no legal effect whatever.

The contention, I am bound to say, seems to me at once so simple and conclusive that I should have been disposed to sustain it without appeal to authority. On the other hand, the pursuer's contention seems to me so technical, as compared with a contention which is based on the public policy which the law of prescription embodies, that I should equally have been disposed, apart from authority, to reject it. The pursuer's contention in truth depends for its success upon the accident that the conveyancer recited the narrative clause of the trust disposition and settlement in the deed of entail instead of referring to it. Had he taken the latter course, the pursuer would, I think, have been constrained to admit that his objection to the defender's title was extrinsic, and that it would be obviated by the running of prescription. But the incaution of the conveyancer-so the pursuer must arguein resuming the narrative clause in the deed of entail destroys the latter as a foundation for prescription. In other words, if you have to go outside the deed of entail to ascertain the contents of the narrative clause of the settlement, the former is good as a foundation for prescription; but if you have to go outside the deed to ascertain the accuracy of the contents of the narrative clause, the deed is not good as a foundation for prescription. After making due allowance for the artificial province of law in which we are moving, Ia seisin without a symbol, generally or parshould not be disposed, if I could avoid it, to give effect to an argument so narrow and indeed finical as that. And if it be said that it is strange that a person whom the testator did not intend to participate in his bounty should intrude himself upon it, and should find his intrusion, if not welcomed, at least

As regards the institutional writers, Stair (Inst., II. xii. 25) says: "Prescription doth not only exclude the preference of other better rights, which, if insisted upon within prescription, would have been preferred as anterior, and the posterior right thereby reduced as non habente potestatem; but all ground of reduction by the King, or other superiors or authors, is excluded; so that the neglect of the King's officers cannot be obtruded by the Act of Parliament, declaring that their neglects shall not prejudge the King; neither any nullity in the titles of prescription, except it be in the essentials thereof: so prescription cannot sustain a perpetual tack without ish, which is essential thereto; nor

ticularly, or not given upon the ground of the
land. But all requisites in rights introduced
by custom or statute, and not essential thereto,
are cut off by prescription." Again, Erskine
(Inst., III. vii. 4) states that "if the title be a
fair genuine writing, and proper for the trans-
mission of property, the possessor is, after the

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COURT years of prescription, secure by the statute." ." (ibid.): "The only objection here is as to the OF SEVEN And in a footnote it is added: "Where a seisin JUDGES. was objected to, as having been taken, not on Cooper the ground of the lands, but at a different Scott v place, in consequence of a dispensation in the Gill Scott. immediate warrant, viz. a disposition from a January 18, subject, the Lords sustained the defence of prescription, as previous titles might have contained a regular dispensation, and such dispensation, though a subject superior could not originally grant, yet being once competently conferred, he could convey it." He further says (Inst., III. vii. 9): "The right of setting aside any deed upon extrinsic objections, which do not appear ex facie of the writing, but require a separate evidence, ex. gr. the right of reduction ex capite lecti, is lost if not exercised within forty years. But objections arising from intrinsic nullities fall not under the negative prescription. Thus a bond, or instrument of seisin, without subscribing witnesses, cannot become valid by any lapse of time." And Professor Bell, in his Lectures on Conveyancing ((3rd ed.) Vol. II. p. 706), says: In all cases, the writings founded on must be free of intrinsic objections; for example, any charter or disposition, forming part of the legal progress, must be probative." If then one finds a probative document, apt to convey the lands, no amount of antiquarian research will deprive possession of the legal weight which is held to attach it.

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The decisions appear to conform with the doctrine as expounded by the writers referred to. I shall now consider the most important of these, and I shall do so chronologically.

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power of the granter, and that after the years
of prescription will be presumed." And Lord
Justice-Clerk Miller says: "The question here
is, whether is the objection extrinsic or intrinsic?
If there is no sasine there is no right, but here
the objection is altogether extrinsic. It is an
objection to the title to grant dispensation.
How can that be good when an objection to
the right of the holder is not good?" In that
case, if one looked at the documents alone,
the title was bad. It appeared to suffer from
a fatal flaw. Sasine was not given, because
it was not given on the lands conveyed, and the
lands on which it was given were not conveyed.
If the objection had been raised within forty
years, it could only have been met by the
production of a Royal Charter. But after
forty years, there is every presumption in
favour of the possession had, and, as it was
necessary to go outside the deed to find whether
the sasine was good or bad, the objection was
held to be extrinsic and to be cured by the
course of prescription which had run.
other words, it is not sufficient for the deter-
mination of the question that one finds on the
face of a deed something that looks like a
nullity. It is not enough to stress the nullity.
One must probe deeper and enquire and
determine the quality of the nullity-whether
it is intrinsic or extrinsic in its character.
the former, prescription is of no avail; if the
latter, it saves the situation.

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So, in the present case, the defender argues that within forty years he would have been bound to produce the trust disposition and settlement, but that after forty years he is excused from that necessity. The mere fact that the narrative clause in the deed of entail contains what bears to be a statement of fact does not, in his view, prove that statement to be correct. The narrative clause, in short, is inconclusive evidence of the correctness of its contents, and after twenty years is presumed to be wrong. Such is the argument.

The first case to which it is proper to refer is that of Scott v. Bruce Stewart (1779, M. 13519, 3 Ross's L.C. 334). In that case an attempt was made to reduce an infeftment on the ground that the sasine had not been taken on any part of the lands conveyed, and that this had been done without any authority other than a clause of dispensation flowing from the granter of the deed. Prescription was pleaded in defence, and the defence was sustained. The next case in Paterson v. Purves (1823, Lord Braxfield (at p. 335), in an opinion | 1 Sh. App. 401). There a charter was executed which has become historic, said: The true in breach of an entail, but it was held to be question here is, Whether is the objection to fortified by forty years' possession. It was the sasine extrinsic or intrinsic? If intrinsic, plain on the face of the deed that the granter then the sasine is null from the beginning, exceeded his powers. But no one argued that and it cannot grow better by being older. A the title was inhabile to found prescription. sasine may be a good sasine though not taken on the grounds of the lands in consequence of a dispensation from the Crown. Before prescription is run, the person who produces the title must remove the objection to it, but after the prescription the objection comes too late. It is the great purpose of prescription to support bad titles. Good titles stand in no need of prescription." Lord Monboddo said

The next case is the Duke of Buccleuch v. Cunynghame (1826, 5 S. 57, 3 Ross's L.C. 338). It was there held that all enquiry into prior titles is excluded by the positive prescription, even although the prior title is narrated in gremio of the title on which prescription is pleaded. Prescription was held to operate, although the title bore that the Crown had right by virtue only of the act of

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annexation, in which there is an express questions can be looked into." And the Lord COURT exception of the rights of the Crown to such Justice-Clerk added (at p. 185): "I agree, in oF SEVEN lands. Lord Balgray said (at p. 60): The the words of Lord Meadowbank, that to doubt title of the defender is complete in itself, and this title would be to shake to the foundation Cooper he has had forty years' possession. Even that statute which is the palladium of the land- Scott v. Gill Scott. granting that the titles had been derived a rights of Scotland." non domino, still he is entitled to plead pre- The next case is Abernethie v. Forbes (1835, January 18, scription, whereby any enquiry into that fact, 13 S. 263). The facts are somewhat remote or into mala fides, is excluded. In the case of from those in the case before us, and need not Forbes of Callender (1822, 1 S. 282) a pre- be rehearsed, but I desire to refer in particular scriptive title was sustained relative to coal, to what is said by the Lord Ordinary in the although originally it was excepted from the course of his opinion at the foot of page 268 conveyance; but having been inserted in the of the report. subsequent titles, and possession having been enjoyed for forty years, the right to the coal was held to be undoubted." Lord Gillies said (at p. 61): "It would be a serious question indeed if we were to deny effect to a prescriptive title because it appeared ex facie of the deed that the former titles had not been correctly deduced, or that a wrong one had been stated. This is truly the nature of the objection which is now made." And the Lord President said (at p. 61): "It can scarcely ever happen that there is a prescriptive title without some falsehood connected with it. If the title be in itself perfectly good, and derived from the true proprietor, there can be no need of prescription, which is only necessary to cure bad titles.' Again, in Forbes v. Livingstone (1827, 6 S. 167, 1 W. & S. 657), it was held that the Crown charter of the vassal was a valid title on which to prescribe a right to coal, although the Barons of Exchequer were only authorised to pass Crown charters of the properties, as held under the forfeited superior. The consulted judges said (p. 173): "So far as it did not except the coal, an error was no doubt committed by the Barons of Exchequer, and the charter, in so far as it thus had the effect of conveying the coal, was null on the ground of error. Nullity, however, from error is not a relevant ground of objection to a prescriptive title. On the contrary, prescription is in general pleaded to support a title originally invalid, it being otherwise not necessary to found on prescription. The alleged nullity of the charter, from defect of form and delay in obtaining it, is equally irrelevant when considered as a title of prescription.

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We see Mr Livingstone possessing his estate under a series of titles far exceeding the period of forty years, the dispositive clause of which is sufficient to include the coal in the lands, and this is all that is required for founding the plea of a prescriptive title." At the advising, Lord Pitmilly said (at p. 184): "No doubt, if a declarator had been brought within forty years of its (the title's) date, it might have been found that the coal was not conveyed ; but, after prescription, no such

Then comes the important case of Cubbison
v. Hyslop (1837, 16 S. 112, 3 Ross's L.C. 328).
It deals with the negative prescription, and
shews how that prescription may be available
to a person who has failed to establish his case
on the positive prescription. There a reduction
was brought of certain decrees of adjudication
and sale, and of the title made up under them.
The reduction failed, for the Court held that,
there being no ex facie nullity, the right of
challenge was cut off by the negative prescrip-
tion. Lord Corehouse said (at p. 119):
For
example, A disposes to B, B to C, and so on.
One of these dispositions is objected to on the
ground of forgery, or because it was impetrated
by force or fraud. Now, all these objections
are cut off by the negative prescription.'
(Parenthetically it may be observed that
falsehood-meaning thereby forgery-is, de-
spite what his Lordship says, a valid answer
to the plea of prescription.) For although,"
proceeds Lord Corehouse, "exceptions founded
on ex facie nullities, for example, that the deed
is not subscribed, or that it is tested by only
one witness, and the like, are not barred, yet
all objections not appearing ex facie on the
deed are effectually cut off by the negative
prescription." As Mr Stevenson somewhat
picturesquely put it in the first debate: "When
prescription begins to run, all earlier titles are
under sentence of death. When the prescriptive
period has expired, the sentence is executed.

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I now come to the case of Thomson v. Stewart
(1840, 2 D. 564). There a bill of exchange
was granted by a married woman. Now, the
obligations of a married woman
no doubt
were at that date, generally speaking, null and
void. But the Court held that the nullity in
such a case was not intrinsic. It was pointed
out from the bench that the bill might have
been granted for money which was wholly
in rem versum of the married woman, in which
case her obligation would be good. If there be
any grounds on which that bill could be valid,”
said Lord Gillies (at p. 570), "I must, at this
distance of time, presume that such grounds did
exist, and hold that all challenge is now cut off
by the negative prescription." In other words,

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COURT unless the nullity is made good on the face of the OF SEVEN document, that nullity affords no answer after the years of the negative prescription have run. Cooper The next case is Macdonald v. Lockhart Scott v. (1842, 5 D. 372, 3 Ross's L.C. 367). It was Gill Scott. there held that heirs portioners were entitled January 18, to succeed under a deed of entail, on which forty years of possession had followed, despite the fact that a prior contract of marriage, in professed implement of which the deed of entail was granted, contained a clause excluding heirs portioners. The investiture was fortified by prescription, and all right of action thereby cut off. The case is of importance also as an answer to the pursuer's argument of non valens agere, which has now been abandoned, and it need not further detain us.

The case of Shepherd v. Grant's Trs. (1844, 6 D. 464, 3 Ross's L.C. 336) affords an excellent example of the doctrine of intrinsic nullity. There the name of the first substitute called in a deed of entail was written on an erasure. It was held that that was a vitiation in essentialibus, and was fatal to the deed. It was observed from the bench that the deed was not a legal or effective instrument, that it was not probative, and was therefore null and void as a conveyance of the estate to any disponee, that there was no disposition by the granter that in short the deed was utterly null and void. The decision was affirmed in the House of Lords (6 Bell's App. 173).

I now come to the case of Her Majesty's Advocate v. Graham (1844, 7. D. 183). There it was held that, prescription having run in favour of the possessors of a patronage, upon a title ex facie sufficient, certain grounds of challenge, and all enquiry into the older titles and the origin of the rights claimed was excluded, and that the positive prescription operated against the annexed property of the Crown. The Lord Justice-Clerk said (at p. 195): "This ground of challenge is only reached by enquiries into the origin of the title of the party conveying the patronage in 1732, in order to shew that the disposition flowed a non habente potestatem. It is a fixed principle of law that such enquiries are excluded by the effect of prescription.' And again (on p. 196) he adds: "No definition of essential nullities in the law of Scotland includes want of title in the granter of the deed on which prescription follows, and every explanation, on the other hand, limits the import of the exception to the ordinary meaning of the terms-nullities, ex facie, which deprive the title of the character of a formal, complete, and valid instrument. Want of power in the granter is not a vitium reale, pleadable against the prescriptive possession of the disponer, else the statute truly effected nothing of value for certainty of heritages." Lord Moncreiff, in a

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noteworthy passage, said (at p. 205): “If the principle of this plea could be listened to as a general doctrine, we might shut our books on the law of positive prescription; for, in nine cases out of ten which have been tried in reference to that law, the allegation of the party seeking to evict the right prescriptively possessed, has been that the original titles founded on had proceeded a non habente potestatem: and I humbly apprehend that, if the statute has any meaning in its preamble, and the enactment following it, the very purpose of it was to exclude any such enquiry, and to raise an absolute presumption of error, falsehood, forgery, or some other fatal nullity, against all the averments, and all the muniments founded on in support of them, for shewing that the titles by which the possession has been held were derived from some party who had no power to constitute them." It may be noted that that passage which I have quoted from Lord Moncreiff's opinion has the express assent of Lord Kinnear in the case of Fraser v. Lord Lovat (1898, 25 R. 603 at p. 619).

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Finally I come to the case of Ochterlony v. Ochterlony (1877, 4 R. 587). There the institute under a deed of entail discovered, thirty-six years after he entered into possession, that the deed was invalid because the word "irredeemably in the clause prohibiting alienation was written on an erasure. I desire to refer to the penultimate paragraph of Lord Rutherfurd Clark's opinion on p. 589: The pursuer further maintains," said he, "that by reason of the long period for which he has possessed the lands under the existing title, his right to possess under that title cannot now be questioned. If prescription had run, the argument of the pursuer would have been sound." And that although the defect was manifest to the eye on the face of the deed itself.

The conclusion of the whole matter is this: The defender contends that he holds, as the next substitute in the entail, under a deed which is not ex facie null. He argues that in no reported case has the Court held a flaw such as that in the deed of entail with which we are concerned to be an intrinsic nullity. He maintains that the dispositive clause is unambiguous, and that, even if it be repugnant to the narrative

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clause, still, in accordance with a familiar canon of construction, it must receive effect (Chancellor v. Mosman, 10 M. 995; Orr v. Mitchell, 20 R. (H.L.) 27). At any rate he contends that, his title having been fortified by prescription, he has a right to serve under the deed, and that no one can now say him nay. I think that that contention is sound, and that it is supported both by the opinions of the institutional writers and by the decisions to which I have referred. Accordingly, I am for refusing the reclaiming note and affirming the judgment of the Lord Ordinary.

Lord Skerrington [reading the opinion of the consulted judges].-While I think that the Lord Ordinary came to a correct conclusion in regard to the law applicable to this action and that his judgment ought to be affirmed, I should have regarded his opinion as more satisfactory if it had given greater prominence to and had countered what I regard as the real strength of the pursuer's case, viz. the circumstance that the challenge of the validity of the deed of entail is based upon a breach of trust alleged to have been committed by the testamentary trustees who executed the deed, and that the object of the present action is to assert and vindicate for the pursuer a right of succession which would undoubtedly have belonged to him if this breach of trust had not been committed. The angle from which the Lord Ordinary regarded the case would be explained if the argument addressed to him was similar to that addressed to the seven judges in assuming that as regards prescription no distinction could be drawn between a breach of trust and a contravention of a personal jus crediti. The debate before us proceeded upon the assumption that prescription, both positive and negative, would ordinarily apply in the case of a breach of trust, and that, accordingly, the only question to be considered in the present case was whether the objection was not so apparent on the face of the deed of entail as to constitute an intrinsic nullity which could not be cured by any length of possession or by any lapse of time, however protracted. While I do not dissent from this way of stating the ultimate question which we have to decide, I regard it as unfortunate that a preliminary question which lies at the root of the present litigation was not argued in the ordinary way with a proper citation of authorities, but on the contrary was assumed and passed over in silence. The law, as I understand it, is this: So long as a property belonging to a trust is extant in the hands of a trustee, neither the positive nor the negative prescription can be appealed to by the trustee so as to prevent a beneficiary from vindicating the property for the trust even though the

JUDGES.

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trustee may have been in possession upon a COURT title which makes no reference to the trust. OF SEVEN One of the reasons for this is that the possession of the trustee is deemed to be the possession of Cooper the beneficiary. Accordingly the whole founda- Scott v. tion of the negative prescription-presumed Gill Scott. abandonment-fails in such a case. It further January 18, follows that although the trustee may have acquired an unchallengeable title to the property by the positive prescription in a question with the general public, he is deemed to have done so for behoof of the beneficiary. His right remains a qualified one in a question with the beneficiary to the same effect as if the trust had been incorporated in the title. The position, however, is different if the trustee transfers the property to a third party who possesses it upon an ex facie absolute title. In such a case the third party may be held to be in possession for his own behoof, and accordingly both the positive and the negative prescriptions may begin to run in his favour and against the right of the beneficiary as from the date of the transference. So long, however, as the prescriptive period has not expired, a third party who is either a gratuitous disponee or an adjudger from the trustee holds the property tantum et tale and under burden of any latent trusts which qualified the right of the trustee. While the general rule is as I have stated it, personal claims at the instance of a beneficiary against a trustee may be cut off by the negative prescription even while the trustee remains in office. The general rule is stated by Lord Kinloch in the opinion which he delivered as Lord Ordinary in the case of University of Aberdeen v. Irvine (1866, 4 M. 392 at pp. 401, 402), an opinion expressly approved of by the Lord Chancellor (Cairns) when the case was in the House of Lords (6 M. (H.L.) 29 at p. 37). On the other hand, the exceptional cases in which the claim of the beneficiary may be held to have been cut off by the negative prescription are discussed in the opinions of the judges in the case of Barns v. Barns' Trs. (1857, 19 D. 626). The pursuer does not charge fraud either against the granters or against the grantee of the deed of entail.

In so far as I am competent to express an opinion upon a question which was not argued, I think that the pursuer's demand to have the deed of entail rectified and brought into conformity with the directions of the testator is liable, in the absence of some specialty, to be cut off by the positive and negative prescriptions. The institute of entail possessed the estate under and in virtue of the deed of entail for more than forty years, viz. from 22nd February 1881, when it was recorded in the Register of Sasines, until his death on 17th May 1921. Accordingly if there was no

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