Scottish Court of Session Decisions

Subject_1 PRESCRIPTION.
Subject_2 DIVISION III.

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

Title requisite to Purchasers of Land, and to Adjudgers.

Fraser
v.
Hogg, &C

Date: 21 January 1679
Case No. No 79.

A sasine without a warrant, not bearing to proceed upon a retour, or precept of clare constat, is no title of prescription.

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The Earl of Marischall having wadset certain lands to Monan Hogg, Sir Alexander Fraser having right to the reversion, uses an order, and pursues declarator of redemption against James Hogg, oye and apparent heir to the wadsetter. Compearance is made for the relict of Monan Hogg, son to the wadsetter, who produced her contract of marriage, providing her to the liferent of the half of the lands in question in anno 1633, and an infeftment thereupon from her husband; and alleged, that she had right to the sums consigned, as coming in place of the land redeemed. It was answered, That she had no right by her infeftment against this declarator, which is a petitory judgment, unless she could instruct that her husband, who was her author, was infeft, otherways her right was a non habente potestatem; for if the wadsetter's son died infeft, any right granted by him is effectual; but his son may pass by him, and enter heir to his goodsire, and thereby have right to the sum and wadset consigned. It was replied for the relict, That her infeftment having been unquarrelled for forty years, gives her a full right by prescription, being clad with possession, for the law interprets a husband's possession to be the wife's possession. 2do, There is produced a sasine of the son's, upon a disposition from the wadsetter, which being clad with forty years possession in the son, and his relict deriving right from him, it makes the same a complete right, whereby the oye cannot pass by the father, and go to the goodsire; and though the relict cannot produce the warrant of her husband's sasine, which hath been abstracted by her step son, who hath transacted with Sir Alexander, and colluded to exclude his father's relict, yet this sasine, with forty year's possession, is sufficient by the act of prescription. It was duplied, That the act of prescription doth never give right upon sasines without a warrant, except such sasines as proceed upon precepts of clare constat and retours; but in all other prescriptions, it requires a charter or precept before the years of prescription, and sasines, and possession subsequent for forty years; but this sasine of the relict's husband hath neither a charter nor precept antecedent, nor doth it proceed upon retour or precept of clare constat.

The Lords found, That this sasine neither having a warrant produced, nor proceeding upon a retour or precept of clare constat, is no title of prescription; and that the wife's own infeftment cannot infer prescription by her husband's possession, unless she had possessed forty years after his death.

Fol. Dic. v. 2. 103. Stair, v. 2. p. 677.