v.
Alexander Welsh, Esq., of Scarr, Respondent
Subject_Entail — Negative Prescription — Possession on two Titles — Non Valentes Agere. —
An entail was made of the estate of Scarr, which, after being recorded, remained personal, without any title being made up under it. The institute, who was also the entailer’s heir of line, possessed on apparency for twenty years. The entailer having left some debt, the son of William Welsh, a substitute under the entail, attempted to carry off the estate as a fee simple estate, by obtaining an assignation to these debts, and adjudging upon these, charter was obtained upon this adjudication,
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but no infeftment was taken until 1793. He continued to possess until his death without making up any other title, but left a disposition of his estate in favour of the appellant. In a reduction of that right, brought by the respondent, the next substitute; held that the entail had not incurred the negative prescription, and that the possession of William Welsh and his son John, was to be ascribed to the entail, and not to their unlimited title as heirs of line.
In 1748 Alexander Welsh died, possessed of the lands of Scarr, of which he was unlimited proprietor, but leaving an entail executed many years before his death.
At this time the rental was only £35, 8s. 8d. per annum, and it was burdened with a liferent locality of £15, 8s. 8d., provided for his widow, who survived him. He left, besides, heritable debts to the amount of £333, 6s. 8d., and £280, 1s. 8d. of moveable debts. His nephew, William Welsh, the institute in the entail, succeeded. He was also heir of line, and chose to possess on apparency, without making up his title in either capacity. Sometime thereafter an adjudication was led, including therein all these debts, and decree obtained in name of David Newall, in trust for behoof of John Welsh Maxwell, the son and heir of William Welsh. It was alleged that this was an attempt to carry off the estate as a fee simple estate.
Dec. 10, 1793.
John Welsh Maxwell having thus acquired adjudication and grounds of debt, he afterwards expede a charter of adjudication of the lands of Steelston, Scarr, and others, and was infeft of this date, but decree of expiry of the legal of the adjudication did not appear to have been obtained.
Afterwards he executed a disposition by which he gave, granted, and disponed “to, and in favour of the said Jane Maxwell (the appellant), and Anne Welsh (her sister), equally between them, and their heirs, and successors, and disponees, all lands and heritages belonging, or which shall belong to me at the time of my death, with the whole writs and evidents thereof, conceived in favour of me, or my predecessors and authors.”
Anne Welsh having died, the female appellant was served heir to her, and entered into the possession of the estate.
Sept. 16, 1742.
After the female appellant had been in the undisturbed possession for upwards of sixty years, it was found that Alexander Welsh, who died in 1748, had, before his death, made an entail of the estate of Scarr, and which was duly recorded in the same year, but no infeftment followed thereon, the right
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under the entail remaining personal. By this deed William Welsh was taken bound, as a condition of his succeeding, to pay off all his debts, &c. William Welsh and his son, John Welsh Maxwell, were both of them the nearest heirs of tailzie nominated in the entail. They were also the deceased’s heirs of line, and they were also the acquirers of the separate title to the estate by the adjudication above recited. After them the next substitute was the respondent’s father, Mr Hamilton, married to the entailer’s sister, and then, after him, the appellant.
An action of reduction was brought by the heir of entail to set aside the appellant’s right, the value of the estate and of the land having risen greatly in the interval.
The defences set up by the appellant were, 1st, That the entail upon which the pursuer (respondent) founded his claim, was cut off and excluded by the negative prescription; 2d, Even were this not the case, she was entitled to keep possession of the subjects until she received payment of the debts contained in the adjudication.
The answer made by the respondent was, 1st, That he and his father were in the predicament of non valentes agere cum effectu; and that in three respects, 1st, Neither he nor his father had any right, during the lives of William Welsh, and his son, John Welsh Maxwell, to compel either of them to complete the investiture pointed out by the entail, by expeding a charter in terms thereof, and taking infeftment upon it; 2d, Neither he nor his author had any interest to pursue such an action, till the death of John Welsh Maxwell, in the year 1801, because William Welsh, and his son, John Welsh Maxwell, were not only heirs of entail in the tailzie, but the nearest heirs of entail, as well as heirs of line, and therefore the respondent could not have demanded possession, as long as either of them lived. And lastly, he maintained that their possession was to be imputed, not to the apparency under the old investiture, but to the personal right contained in the disposition and tailzie.
But the chief reply of the respondent was, that the prescriptive possession pleaded, was a possession of persons who were the nearest heirs of tailzie under the entail, and therefore that the possession of William Welsh, and his son, John Welsh Maxwell, must be ascribed to the entail, and not to the unlimited title subsequently acquired by them.
Jan. 23, 1807.
This interlocutor was finally pronounced, “The Lords alter the interlocutor of the Lord Ordinary reclaimed against, and
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in the process of reduction, repel the defences of the negative prescription and all other defences pleaded for Mrs Jane Maxwell and husband, defenders; sustain the reasons of reduction, and reduce, decern and declare in the terms of the conclusions of the reduction libelled; also in the process of multiplepoinding prefer Alexander Welsh the pursuer, upon the interest produced for him to the sum in the hands of the raisers of the multiplepoinding, and remit to the Lord Ordinary to proceed accordingly.”
June 22, 1808.
On reclaiming petition, the Court pronounced this interlocutor, —“Adhere to their interlocutor reclaimed against, in so far as it repels the defence of the negative prescription, but recall the same, quoad ultra, and remit to the Lord Ordinary to hear parties upon the other defences pleaded for Mrs Jane Maxwell and husband, and to do as he shall see cause.” *
From these interlocutors, the present appeal was brought to the House of Lords.
Pleaded for the Appellants.—Any claim which the respondents pretend to have under the entail 1742, is completely cut off by the negative prescription introduced by the statute 1469, c. 28, which enacts, “That any party having interest in the obligation, shall follow the said obligation, within the space of forty years, and take document thereupon; and gif he does not, it shall be prescribed, and be of nane avail, the said forty years being runnin, and unpursued by the party.” So, in like manner, the statute 1474, c. 54. And the statute 1617, c. 12, provides that all actions competent of the law upon all deeds whatsoever “shall be pursued within the space of forty years after the date of the same.” The action, however, upon the part of the respondent, was not brought until sixty-four years after the date of the deed of tailzie in 1742, and, therefore, no action is now competent, and the entail prescribed.
2. The possession of William Welsh and John Welsh Maxwell, his son, will, according to law, be imputed to their title as heirs apparent of line, and will not be imputed to their title as institute or substitute under the entail; and the respondent cannot truly say that his father, while he lived, or he himself, since his father’s death, was, during any period of that possession, non valens agere cum effectu. For they, in their order, had a right to compel the heirs successively in possession to make up titles, and complete the investiture prescribed by the entail.
3. It is not necessary, in order to entitle any party to plead the negative prescription, that he should also plead the positive. On the contrary, it is enough if, in the event of the negative prescription being sustained, that party can make up a complete feudal title in his or her person.
Pleaded for the Respondent.—The possession of William Welsh, for a period of more than twenty years, must be ascribed to the entail under which he had a personal right whereon to found his possession; and there was no room for an action at the instance of the substitutes, who could not qualify any act of contravention as matters then stood.
2. The negative prescription is not pleadable by the appellant, Mrs Welsh Maxwell, who, so far from having a title in her person fortified by the positive prescription, is but an adjudging creditor, who must ascribe any possession held by her to an adjudication, the legal of which is still open; and upon which, possession had not followed after the date of the infeftment for a fourth part of the period which the law requires in order to convert an adjudication into a title of property.
3. The deed of entail and relative parts of Alexander Welsh’s settlement were recognized by William Welsh, and homologated and approved of by him, in such a manner as to cut off all pretence of prescription having commenced, until infeftment was obtained on the foresaid charter of adjudication, 1793.
After hearing counsel,
The Lord Chancellor Eldon said,
“This was an appeal to your Lordships in the cause of Welsh v. Maxwell. Upon the best examination I have been able to give to the subject, and the principles to be applied to the consideration of the case, if none of your Lordships should be of a different opinion, it appears to me the judgment in the case ought to be affirmed.” *
It was ordered and adjudged that the interlocutors be, and the same are hereby affirmed.
Counsel: For Appellants, William Adam, David Cathcart.
For Respondent, Sir Saml. Romilly, Thos. W. Baird.
Source: https://www.bailii.org/
