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1924..

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REPORTS-1924, SCOTS LAW TIMES.

COURT specialty in the deed which prevented it from After carefully considering the question from OF SEVEN being a habile basis for the positive prescription the point of view both of principle and of JUDGES. the institute acquired an unchallengeable right authority, I have come to the conclusion that Cooper both for himself and also for the substitutes the inconsistency between the destination as Scott v. pointed out in the deed (including the defenders) contained in the dispositive clause of the deed Gill Scott. on the expiry of twenty or, alternatively, of of entail and the destination, which (according January 18, forty years from 22nd February 1881. In like to the narrative clause of the same deed) manner the substitutes (including the pursuer) ought to have received operative effect in the who had a right preferable to that of the dispositive clause, is irrelevant to the question of defenders as beneficiaries under the testator's prescription unless the pursuer can demonstrate trust must (in the absence of any specialty) be that the inconsistency has the effect either (1) held to have lost that right by the negative of rendering the deed of entail null and void as prescription through their failure to enforce a conveyance of and title to land; or (2) of it within forty years of the publication of the converting what at first sight appears to be an deed of entail. absolute title qualified only by the fetters of a I now come to what I agree with the pursuer's strict entail into a title which is further qualified counsel in regarding as the question of import-by a trust for behoof of the beneficiaries under ance in the present case, viz. whether there is the residuary clause of the trust disposition and any peculiarity in the deed of entail which settlement of the testator. The second point excludes an appeal to prescription in a question between a disponee or an heir of the investiture, on the one hand, and a beneficiary under the testator's trust, on the other hand. Obviously the deed of entail is a bungled deed. There is a manifest inconsistency between the way in which the estate has been actually settled by the dispositive clause and the way in which it ought to have been settled if the narrative clause sets forth accurately and exhaustively the directions which the testator gave to his trustees. From this it follows that the deed would not be described in popular lanugage as a deed the validity of which was apparent upon its face. It would be described as a deed which suggested on the face of it a serious doubt whether it was not ultra vires of the trustees who granted it and therefore null and void. Accordingly, if section 34 of the Conveyancing (Scotland) Act, 1874, could be regarded as an isolated piece of legislation, it might be doubtful whether the deed of entail with which we are concerned was an ex facie valid irredeemable title to an estate in land within the meaning of that section. The section ought, however, in my opinion, to be regarded as an amendment of the provisions of the Act 1617, cap. 12, relative to the positive prescription as those provisions have been interpreted by the decisions of the Court-see Buchanan and Geils v. Lord Advocate (1882, 9 R. 1218). In this view the words ex facie valid" would imply no more than that the title must be free from any "intrinsic nullity" within the meaning of the decisions in regard to the positive prescription. In any case, the true construction of the legislation of 1874 is not of essential importance in the present litigation, seeing that the possession under the deed of entail continued for more than forty years and that the effect of the negative prescription has also to be considered.

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is not in the case, because it was not argued or even suggested by the pursuer's counsel, and rightly so in my opinion, because I do not think that the deed of entail is susceptible of such a construction. I mention the point merely for the sake of completeness, and because one branch of the pursuer's fifth plea in law might have entitled the pursuer's counsel to argue it. It is possible to figure a disposition which, although unqualified in its dispositive clause, would fall to be construed as a conveyance of the bare legal estate either (a) because the narrative clause made it certain that the disponee and his heirs of provision were not intended to take the property as beneficial owners; or (b) because the narrative clause contained a substantive and operative declaration of trust in favour of a third party. Such a disposition as I have figured would be immune from prescription as regards the right of the beneficial owner, seeing that the owner of the legal estate could not prescribe against the terms of his own title.

It now remains to consider the only question argued to us, viz. whether the deed of entail complies with the standard required by the decisions of the Court in regard to the long prescription both positive and negative. Can a disposition which ex hypothesi is unqualified by any trust, which is properly executed, and the operative clauses of which are perfect and complete, be correctly described as intrinsically null merely because the narrative clause recites (it may be erroneously) that the granter of the disposition was under a personal obligation arising out of a trust, or out of a contract, which required him to settle the property in a manner different from that effected by the dispositive clause? The answer must, in my opinion, be in the negative. Infeftment following upon such a disposition would transfer the property from the disponer

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to the disponee, whereas an intrinsically null disposition would leave the property vested in the disponer. While the phrase "intrinsic nullity is not to be found in the statutes, I should be slow to believe that the able lawyers who coined it expressed themselves so inaccurately as to apply it to a disposition which, when followed by infeftment, would perform effectively the ordinary and proper function of a deed of that character. The recital of a personal obligation to settle the property in a manner which differed from that effected by the dispositive clause would not affect the validity of the deed unless it was proved (in the way in which it alone could be proved, viz. by extrinsic evidence) that such an obligation did in fact exist. For all that anyone reading the deed of entail can know, the statement of the narrative clause may be either inaccurate or incomplete, for example, owing to the failure per incuriam to refer to a second codicil which directed the insertion in the destination of the very words to which the pursuer takes exception. An action of reduction would be irrelevant if the pursuer confined himself to averring that the destinations in the two clauses were inconsistent, but shrank from averring that the destination in the dispositive clause of the deed of entail was in fact unauthorised by the testator. This fact would have to be proved by the pursuer if the challenge was made during the prescriptive period. After the expiry of that period, a challenge based upon an appeal to extrinsic evidence would be excluded, and a presumption juris et de jure would arise, that the recital of the destination enjoined by the testator was either inaccurate or incomplete.

The decided cases with regard to the positive prescription are consistent with the view which I have expressed. It is unnecessary to examine them in detail, as they are conveniently collected in Ross's L.C. (Land Rights), Vol. III. pp. 338 et seq. To these the later case of Fraser v. Lovat (25 R. 603) may be added. The effect of the decisions is correctly stated by Bell in section 2010 of his Principles. An infeftment, he says, has been held good as a title of prescription even where the title bore evidence in gremio of the objection, but the ground of that objection was to be collected extraneously."

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The law is similar in regard to the negative prescription. Thus Erskine states (III. vii. 9) that "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 COURT any lapse of time." OF SEVEN JUDGES.

It is proper to note that the pursuer's counsel did not argue that the plea of prescription Cooper should be repelled upon the ground that his Scott v. client had been in minority or non valens agere as stated in his fifth plea in law.

It was suggested in the course of the debate that the words in the dispositive clause of the deed of entail to which the pursuer objects might possibly be regarded as mere surplusage, and therefore held pro non scriptis. Seeing, however, that there is no ambiguity as to the meaning and legal effect of the words in question the suggested solution of the difficulty seems to me to be illegitimate and inadmissible. As Lord Davey said in the case of Mackenzie v. Duke of Devonshire and Others (1896, 23 R. (H.L.) 32 at p. 35), it is a settled principle of law that the operative words of a deed which are expressed in clear and unambiguous language are not to be controlled, cut down, or qualified by a recital or narrative of intention." Accordingly the pursuer's counsel (properly, as I think) refused to argue that the destination in the dispositive clause could be interpreted so as to bring it into harmony with the destination in the narrative clause, though his attention was specially directed to this aspect of the case.

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Lord Ormidale expressed his concurrence with the opinion to be read by Lord Hunter.

Lord Hunter.-The reclaiming note in this case raises an interesting and, as I think, difficult question under the law of positive prescription relating to heritable rights. Peter Redford Scott died on 23rd May 1865. In terms of his trust disposition and settlement his trustees were, on the death of the survivor of his brother and sisters or on the death of the survivor of himself and his wife, whichever of these events should last happen, to convey the residue of his estates in terms of a deed of strict entail. The destination directed by the truster was, after provisions in favour of the heirs of his body and the heirs of the body of his brother Francis Scott, to the heir male of the said now deceased Mrs Jane Gill or Young, whom failing the heirs male of the body of the said Mrs Janet Gill or Cooper, whom failing the heirs female of her body

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Gill Scott.

January 18, 1924.

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JUDGES.

1924.

COURT dated 2nd December 1880 and recorded in the John Young Scott completed his title as OF SEVEN Register of Entails on 15th February 1881. institute under the tailzied destination by The narrative of the deed correctly sets forth recording a warrant of registration in the Cooper the reasons for the grant and quotes accurately General Register of Sasines on 22nd February Scott v. and verbatim the destination prescribed by 1881. He remained in the undisturbed posGill Scott. the testator. It also narrates that the time has session of the estates until his death without January 18, now arrived when, in the final execution of the male issue on 17th May 1921. During the trust, they have to denude and execute this period of John Young Scott's possession of the deed of strict entail in favour of the series of estate no one was in a position to dispute the heirs therein specified. In the dispositive validity of that possession although I assume clause the lands are disponed "heritably and that it would have been open to any substitute irredeemably to and in favour of John Young under the entail to get the deed corrected if Scott (formerly named John Young) the heir there was an error in the destination detrimale of the said deceased Jane Gill or Young, mental to his ultimate interests. On the death whom failing the heir male of the said Mrs of John Young Scott both the pursuer, who is Jane Gill or Young, now deceased, sometime heir male of the body of Mrs Cooper, and the wife of Mr William Young residing at Gala- defender, who is heir male of Mrs Young, shiels, whom failing the heirs male of the body presented petitions to the Sheriff of Chancery, of Mrs Janet Gill or Cooper," etc. Between the each craving to be served as nearest and lawful narrative and the dispositive clause of the deed heir of tailzie and provision in special of the there is a manifest and apparent discrepancy. said John Young Scott in the entailed land. According to the former of these clauses only The determination of the question involved one heir male of Mrs Young is called to the in these petitions has been postponed until the succession; according to the latter, John present case has been decided. Young is called as heir male of his mother and, apparently on his death, the heir male of Mrs Young at that date is called as substitute. But the dispositive clause has internal evidence of careless draftmanship. John Young, the institute, is described as the heir male of the said deceased Jane Gill or Young, and the first substitute is described as the heir male of the said Mrs Jane Gill or Young now deceased, sometime wife of Mr William Young residing at Galashiels. If the intention of the draftsman of the deed was to make the heir male of Mrs Young at a subsequent date substitute to the institute, who was her heir male at the date of the execution of the deed, one would have expected the full description of Mrs Young to appear when the institute is described as her heir male and not to be reserved until the substitute is referred to. The language itself suggests that the words "whom failing the heir male of the said Jane Gill or Young are mere surplusage and have been introduced in error by the draftsman. At all events there appears to me to be such uncertainty in the wording of the dispositive clause that reference to the narrative clause is necessary to find out whether the intention of the granters of the deed was to call more than one heir male of Mrs Young to the succession. It may be said that the summons has not been so framed as appropriately to raise this question. Personally I should be disposed to give the pursuer every facility by way of amendment that may be necessary to avoid a manifest injustice being done him under cover of a narrow and rigid application of the assumed principles of the law of prescription.

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It is not disputed that, in terms of the destination in the trust disposition and settlement of the late Mr Scott, correctly set forth in the narrative clause of the deed of entail, the pursuer was, on the death of John Young Scott, entitled to succeed to the estate in dispute. The contrary is maintained on record; but the argument on these lines was properly abandoned by defender's counsel when the case was argued before us. The only question now is whether the pursuer's rights cannot be successfully pled because the defender has acquired an adverse and preferable title by the law of positive prescription. Is the defender then in a position to put forward a right so perfected?

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Section 34 of the Conveyancing and Land Transfer (Scotland) Act, 1874 (37 & 38 Vict. cap. 94), provides : Any ex facie valid irredeemable title to an estate in land recorded in the appropriate register of sasines shall be sufficient foundation for prescription, and possession following on such recorded title for the space of twenty years continually and together, and that peaceably, without any lawful interruption made during the said space of twenty years, shall, for all the purposes of the Act of the Parliament of Scotland, 1617 (cap. 12), Anent prescription of heritable rights,' be equivalent to possession for forty years by virtue of heritable infeftments for which charters and instruments of sasine or other sufficient titles are shewn and produced, according to the provisions of the said Act; and if such possession as aforesaid following on an ex facie valid irredeemable title recorded as aforesaid shall have continued for the space of thirty years

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Gill Scott.

1924

no deduction or allowance shall be made on of the entailed estates was presented to the COURT account of the years of minority or less age of Sheriff of the Lothians and Peebles at Edin- OF SEVEN JUDGES. those against whom the prescription is used and burgh and was intimated to the pursuer's objected, or of any period during which any uncle, John Cooper, who was then heir male of Cooper person against whom prescription is used or Mrs Janet Gill or Cooper as being the heir Scott v. objected was under legal disability. entitled to succeed to the said entailed estates. Assuming the provisions of this Act to be The said John Cooper died on 3rd July 1902, January 18, applicable, can the defender bring himself within when the pursuer became the heir male of their scope? I do not think it doubtful that Mrs Janet Gill or Cooper. The answer of the the possession founded on need not be the actual defender to his allegation is: "It is believed and possession of the person maintaining the right. averred that at the date of the said petition The possession of a vassal may be founded on neither the petitioner nor his advisers were by a superior, or the possession of an institute aware of the existence and relationship of the by the substitutes of an entail. It may also defender." The importance of the pursuer's be admitted that the result of possession for averment consists in the circumstance that the the prescriptive period is to fortify not the recognised substitute to John Young Scott individual but the investiture and that the was the heir male of Mrs Cooper and not a right may become unchallengeable although different heir male of Mrs Young from the the person prejudiced was non valens agere institute who alone of that lady's heirs male during the whole or part of the period of the had any right to the succession. No doubt the running of positive prescription. The essential, possession of an institute under an entail is, however, to maintaining the plea is that the or may be, the possession of the substitutes. title upon which the prescriptive right is But in the lifetime of John Young Scott no founded should be ex facie valid. Is that so one claiming any right to succeed under the in the present case? In my opinion it is not. I entail had any right to challenge his right to have referred to the peculiar terms of the possession. The earliest moment when the dispositive clause and to the ex facie discrepancy substitute could make an effective claim to the between the terms of the narrative clause property was the death of the institute. It may setting forth the heirs of entail to whom the be that one of the objects, if not the main granters of the deed were under obligation to object, of the law of prescription is to fortify convey and the terms of the dispositive clause, bad titles-good titles standing in no need of if it is assumed that the words to which I have prescription. Can it, however, be said that the already drawn attention are not merely title upon which John Young Scott took redundant or superfluous. Is a disposition infeftment is of so clear a character that you ex facie valid where the granter of a deed being must ascribe his possession to the defender and under an obligation, which he correctly narrates, not to the pursuer? Is there not such an to dispone to B proceeds erroneously to dis- apparent weakness in the title that the primary pone to C? An infeftment may follow in question is, for which of the two claimants was favour of the latter; but he is not in a position he in fact possessing? So far as I know there to say that his title is ex facie valid, for the is no case where, in a similar competition, the title depends both upon the charter and the Court has felt constrained to give the property infeftment. The situation is quite different to the person who admittedly has no claim from that where ex facie of the deed the granter under the destination of the author of the entail. professes power to dispone and the challenge depends upon extraneous proof of the want of disposing power.

The efficiency of a prescriptive right in property, depending primarily on an ex facie valid title, is established by continuous peaceable and uninterrupted possession for the prescriptive period of time. The question of possession runs into the question of title. The defender has never in fact been in possession of the property for a single day, nor has anyone who was in any general sense his representative so occupied the property. The only infeftment was by registration of John Young Scott's title as institute under the entail. It is said by the pursuer that on 26th March 1885 a petition at the instance of John Young Scott for authority to feu part

The defender maintained that, as John Young Scott's possession exceeded the period of forty years and as the Act of 1874, section 34, had not repealed the provisions of the Act 1617, cap. 12, as to the prescription of heritable rights, he was entitled to found upon the provisions of the earlier statute. This argument was founded on the contention that there was, or might be, a distinction between the requirements of the two statutes as to the nature of the title required as a foundation for prescription. I do not think this contention is sound; but as the cases upon which the defender relied were mainly, if not entirely, founded upon the earlier statute, the argument must be examined in detail.

The statute of 1617 requires production of a charter of the lands preceding the entry of

JUDGES.

1924.

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COURT the forty years' possession with the instrument OF SEVEN of sasine following thereon. Stair (Inst., II. xii. 25) says: Prescription doth not only Cooper exclude the preference of other better rights, Scott v. which, if insisted upon within prescription, Gill Scott. would have been preferred as anterior, and the January 18, posterior right thereby reduced as a 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." In dealing with positive prescription Erskine (Inst., III. vii. 4) says: "After prescription is run in favour of a singular successor, the charter and seisin, if they be formal deeds, will of themselves support the prescription, without the necessity of producing the grounds of the charter; or even though, if extant, they were reducible upon nullities.' In a note to Lord Ivory's edition of the work is the sentence: "Even where there is an objection to the formality of the investiture, unless that can be proved by the charter or seisin itself, it may be removed by prescription." Later in the same section the author says: "So that, if the title be a fair genuine writing, and proper for the transmission of property, the possessor is, after the years of prescription, secure by the statute." In his Lectures on Conveyancing, Professor Bell ((3rd ed.), Vol. II. at p. 706) 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." It appears to me that an ex facie valid irredeemable title is just a title free of intrinsic objections.

says:

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A great number of cases were cited to us and examined in detail as illustrating what the Court has regarded as extrinsic objections, which are cured by the running of the years of prescription, and intrinsic objections, which deprive the writing of the ex facie validity which is essential to its being a good foundation for prescriptive possession. I do not consider it necessary to examine each case individually. Some of them dealt with fall under the negative prescription, in which case the question is whether a right to challenge has been lost by failure timeously to assert it, while in the cases under the positive prescription the primary question is whether the person founding upon a right of property so acquired or fortified can produce a sufficient title and prove possession by himself or his author ascribable thereto.

It is quite clear that after the lapse of forty years a person relying upon possession for that period on an ex facie valid conveyance is not

liable to have his right challenged by proof that the grant proceeded from one who was not the true owner. In Her Majesty's Advocate v. Graham (7 D. 183) a right of patronage which had been possessed for more than the prescriptive period was challenged by the Crown upon the ground that the patronage had formed part of annexed property of the Crown, from which it had never been separated by any act of dissolution, and that, as the patronage had been feudalised in the person of the Crown, no adverse possession could be founded on. It was held that, as prescription had run in favour of the possessors of the patronage upon a title ex facie sufficient, the grounds of challenge and all enquiry into the older titles and into the origin of their rights was excluded. In the course of his opinion in that case Lord JusticeClerk Hope 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 there is no distinction admitted by any of the authorities to render such enquiries competent against the party pleading prescription, when the challenge is by the Crown. To shew that enquiries of any kind into the origin of the title, in order to prove that it flows from a person non habente potestatem disponendi, even when such enquiries are founded upon or proved by statements in the title itself as to its own origin, are not competent, it is unnecessary to do more than to refer to two well-known cases(1) The Duke of Buccleuch v. Cunynghame, 30th November 1826. The opinions of the Court are given only in 5 Shaw (2nd ed.), p. 55. The defender pleaded prescription, and contended, that although it were true that he derived his titles a non habente potestatem, yet the possession for forty years excluded enquiry into its origin. The reply to that defence was, that the title from the Crown in favour of the defender referred to the origin and source of the Crown's right-viz. the act of annexationthat under that act the Crown had confessedly no right, as public patronages, of which this was one, were excepted; hence, that as the title must be clear in itself, the enquiry into its origin was opened up by the title, and it proved that it flowed a non habente potestatem. The Court sustained the prescriptive title as a title to exclude." The other case referred to by the Lord Justice-Clerk is the case of Forbes v. Livingstone (6 S. 167), which related directly to the validity of an alleged "grant by the Crown as contrary to the Clan Act," and from the opinion of the majority of the Court his Lordship quoted a passage to the effect "that

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