Scottish Court of Session Decisions

The Lord Ordinary ( Ormidale) repelled this plea on the following grounds, which are stated in the note to the interlocutor:—

“In the present case the pursuer had not at the date of the summons, or of its execution or of its being called in Court, expede the general service of which he has since produced an extract. That service was, however, expede on the 22d, recorded on the 26th, and produced in process on the 28th of May last, all of which dates are prior to the lodging of the defences, which was not till the 8th of June current.

It is in this position of matters that the defenders have stated and insisted in their first plea in law. The Lord Ordinary has repelled this plea in respect that, regard being had to the nature and object of the action, viz., the vindication of a right of redemption, the pursuer, as heir-apparent to his grandfather, is entitled to sue, and that, his service having been in initio litis produced, any objection to which his title to sue might otherwise have been exposed has been obviated.

That the pursuer de facto possesses the character of heir in which he sues is admitted by the defenders (answer to condescendence 4). The objection is that he had not served as heir before instituting, or at any rate before calling in Court, the action, and has only produced cum, processu an extract of his service.

The defenders cited in support of their plea the passage in Stair (iv. 38, 18), where it is stated that the active title of a pursuer must be obtained ‘anterior to the day of compearance, at least before calling of the process in the presence of the judge.’ Now if, according to this doctrine, it is not essential that the pursuer's service should have been expede, and the extract of it obtained before the date and service of his summons, but that it would have been sufficient had the extract been produced ‘anterior to the day of compearance, at least before calling of the process in the presence of the judge,’ the whole matter comes to be reduced to form of process merely; and in that view the Lord Ordinary does not think that any principle would be violated in holding that the production of the pursuer's service at the time it was produced was sufficient to obviate the defender's preliminary plea. But the Lord Ordinary rather thinks that he would be warranted by the same high authority in holding that, for the vindication of a right of reversion or redemption, such as that in question, the pursuer could sue without a service at all, in virtue merely of his right of apparency, for Lord Stair (iii. 5, 6) seems to class rights of reversion with pensions and tacks, to the benefit of which he says heirs are admitted ‘without the necessity of being entered.’ And Professor Bell in his Principles (sec. 1683), while he states that an apparent heir is entitled to challenge deeds done on death bed, goes on to remark that ‘it has been doubted whether he is not entitled to reduce any infeftment affecting the estate to which, as heir, he has a right to succeed;’ and he then gives his own opinion, that where ‘the challenge arises from the alleged inefficacy or illegality of the deed excluding the heir who would otherwise take, he may vindicate that right without service.’ So, in the old case of Cunningham v. Card-ross, July 1860, shortly noticed in Morison 16,095, a process appears to have been sustained at the instance of an apparent heir not served, for declaring the lands that he was to succeed to free of the predecessor's debts.

Be that matter, however, as it may, the Lord Ordinary cannot doubt that the production of the pursuer's service was sufficiently timeous in this case to obviate the defenders' preliminary plea. Besides the passage in Stair already noticed, on which the defenders themselves found, the Lord Ordinary may refer to the case of Cunningham v. Semple, 5th March 1624, Mor. 13,269, where, in a process of reduction improbation at the instance of a pursuer as heir to his predecessor, ‘the Lords sustained the pursuit upon the production of a retour when the pursuer was served heir, albeit it was deduced, served, and retoured after the instituting of the summons, which they found sufficient to instruct the pursuit, albeit he was neither served nor retoured at that time, seeing that he was nearest of blood, and that person who only could be heir, and the same drew back the retour to the time of the pursuit; and so much the more, because it was a general retour, and not in any particular lands.’ And in the case of Robertson v. Houston, 13th March 1703, Mor. 13,291, a personal bond granted by an apparent heir was sustained as an active title in a reduction of deeds that might affect the defunct's estate, the pursuer making up and producing a title cum processu, and, as the report shows, the process, ‘after the disputation had commenced,’ being sisted to enable him to do so. Again, in Spottiswoode v. Brown, 3d July 1712, Mor. 13,294, and in Crock v. Gibson, 8th December 1736, 1 Elchies' Decisions, App. to Redemption, No. 4, the same principle was, although the circumstances were different, given effect to. Nor is the analogy unimportant, derivable from that class of cases where the cum processu of the title of a pursuer in actions of removing has been held to be sufficient. — Brown v. Lang, 10th February 1802, Hume, 565; and M'Intosh v. Munro, 23d November 1854, 17 D. 99.”

The defenders reclaimed.

Clark and Shand for them.

Cook and Black in reply.

At advising—

Lord President—It is indispensable for us to consider the precise nature of this action. The summons concludes (1) for declarator that a certain disposition granted by the pursuer's grandfather to the defender's grandfather, though ex facie absolute, is truly only a security; (2) for accounting and payment of a balance one way or other; and (3) on payment by the pursuer to the defender of such balance (if any) as may be found due by him, that the defenders should be decerned and ordained to re-convey to the pursuer the subjects contained in the above mentioned disposition. It seemed to be argued for the defender that in these circumstances the heir (the pursuer) was not entitled to sue without first expeding a special service. But in the present state of his title the pursuer is not entitled to a special service, because his ancestor did not die last vest and seised in the subjects in dispute since he had conveyed them by disposition to the defender's ancestor. The question then comes to this. The pursuer's propinquity to his ancestor being admitted (ans. to cond. 4), was it necessary for him to expede a general service before raising the present action? Now, I think all the authorities are one way—that apparency is sufficient

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