Pursuers: Coutts; Balfour & Manson

First Defender: Mundy; A & WM Urquhart

13^th September 2006

Introduction

[1] This action was heard on the Procedure Roll on the first defender's preliminary pleas. In the event only the eleventh plea-in-law, which is a general plea to relevancy and specification, was debated.

[2] The action concerns title to a property at 57 Main Street, Dreghorn ("the subjects"), which was valued by the pursuer, when this action began in 1996, at something over £50,000. The pursuer is the father of the first defender and they have been fighting over the title to the subjects in a series of six actions since the mid 1970s. The present action, the latest of those six, has already been to the Inner House on three occasions. In an Opinion delivered in January 1994, in the third of the actions between the parties, Lord Maclean observed that this family battle between father and son bore some resemblance to a version of "Bleak House". Events since then have done nothing to invalidate that comparison. However, there is one difference, which Dickens could not have anticipated: both the pursuer and the first defender are legally aided, and this family dispute is, therefore, in the first instance at least, being conducted at the public expense.

[3] As Lord Maclean observed, the essential facts underlying the dispute are not complicated. The subjects were owned by John McMurtrie. He died in April 1941, leaving all his property by his Will to his wife Sarah. Sarah McMurtrie died intestate in August 1951, without having made up title to the subjects. Her son, Robert McMurtrie (referred to on Record as "the deceased") died intestate in November 1971, having also failed to make up title to the subjects. He was succeeded by his children, John and Mary McMurtrie. They are the second and third defenders in this action, though they have not entered appearance. It is not disputed that they were entitled to succeed to his estate.

[4] In 1910 and 1912, John McMurtrie borrowed certain sums, which were secured over the subjects by bonds and dispositions in security. The pursuer, Robert Bain, took an assignment of those bonds and dispositions in 1947; and in June 1948 he obtained decree of maills and duties from the Sheriff Court of Ayr and Bute at Kilmarnock against the representatives of the late John McMurtrie in respect of the sums due under the bonds. The pursuer alleges that he thereby became entitled to possess the subjects as heritable creditor, and it is not in dispute that he has lived there with his wife and children for most of the time since 1948, during which period he has renovated the property.

[5] In 1970 the first defender, Andrew Bain, his son, entered into missives concerning the subjects with the late Robert McMurtrie. In 1976 he raised an action against the representatives of the late Robert McMurtrie for declarator and implement of those missives ("the 1970 missives"). The action was not intimated to the present pursuer, and decree of declarator was pronounced in absence by Lord Grant in October 1976. The first two conclusions in the present action are for production and reduction of the 1970 missives and of the decree pronounced in 1976.

[6] In 1986 the pursuer acquired title from John and Mary McMurtrie. That title was reduced at the suit of his son in the third action between the parties. That was the action in which Lord Maclean delivered his Opinion in 1994. The fifth conclusion in the present action is for production and reduction of the pretended decree of reduction pronounced in that action.

[7] In 1995 the first defender brought an action of implement of the interlocutor pronounced by Lord Grant in 1976. Decree was granted in 1995, in terms of which a disposition in his favour was signed by the Deputy Principal Clerk of Session in April 1996. The first defender caused that disposition in his favour to be recorded but did not take possession. The third and fourth conclusions in this action are for production and reduction of the disposition signed by the Deputy Principal Clerk of Session and of the decree of implement pronounced in 1995.

[8] Later in 1996 the first defender in this action raised eviction proceedings against the pursuer in Kilmarnock Sheriff Court. That case is presently sisted.

[9] There is a conclusion, alternative to the first five conclusions, for payment to the pursuer of the sum of £50,000 with interest.

[10] The discussion at Procedure Roll was not concerned with the pursuer's entitlement to reduce the various decrees passed against him in earlier proceedings. It was agreed that those issues, if they arose, would have to be decided on another occasion. Instead, the first defender's argument focussed on the averment by the pursuer at the beginning of Article 3 of Condescendence in the following terms:-

"The late John McMurtrie had a real right to the property. On his death his wife [Sarah] had a personal right which she failed to make a real right. Her son [Robert] therefore inherited a personal right to the property. He did not make the right real either. His personal right had prescribed prior to the purported missives of 19 October 1970. He had lost his right title and interest to the property known as 57 Main Street, Dreghorn by the expiry of the period of 20 years long negative prescription. He had no right to property with which to make a contract for sale to the first defender in 1970. The first defender acquired no right in 1970. ..."

Those averments instruct the first plea-in-law for the pursuer, which is in the following terms:

"The McMurtrie family's rights to the property being personal and having prescribed as condescended upon prior to 1970 decree of reduction should be granted as concluded for."

The first defender moves the court to give effect to his general plea of relevancy of the action by refusing to admit those averments in Article 3 of Condescendence to probation and by repelling the pursuer's first plea-in-law. Mr Mundy explained that, "potentially", the result of doing that would be to remove from consideration the first four conclusions of the summons, all of which were founded upon the invalidity of the 1970 missives; but he accepted that the position was not entirely clear because of other averments on record about the failure to implement those missives. He told me that parties were agreed that I should put the case out By Order for further procedure to be discussed in light of my Opinion on the issue argued before me.

Argument for the first defender

[11] In developing his submissions for the first defender, Mr Mundy said that the question in issue was whether the late Robert McMurtrie's right to property was one which had prescribed prior to his entering into the missives with the first defender in 1970. If it had, Robert McMurtrie had nothing to contract with since his right had been extinguished by prescription. But this was not the case. Under reference to the Prescription Act 1617, Mr McMurtrie submitted what was cut off by the 40 year (now 20 year) period of prescription was not the right to property but a right to raise an action to enforce that right. If that was correct, then in 1970 Robert McMurtrie still had a right (which had not been extinguished by prescription) to sell the property to the first defender. In effect, despite its short name - as reflected in its short name and in its older title "anent Prescription of Heritable Rights" - the 1617 Act was a statute of limitation rather than prescription. He accepted that the critical date was 1961, 20 years after the death of John McMurtrie. Mr Mundy referred me to Johnson, Prescription and Limitation, at paras. 3.52-3.59. In particular, he relied upon a passage at 3.57 for the proposition that "what was cut off by the negative prescription of the 1617 Act was not a 'substantive' right to heritage but an action". Again, at 3.59, the author says, referring to three examples from Hume's Lectures,

"in all of these cases it is clear that what prescribed was a right of action. Because the right of action was susceptible of prescription, the uninfeft proprietor who was out of possession lost his chance of regaining it."

Mr Mundy emphasised that I was not concerned here with the Prescription and Limitation (Scotland) Act 1973, which only applied from 1976 and did not revive rights which had already prescribed. The words in the Act of 1617 were (using the relatively modern translation at page 6 of the Handbook of Prescription According to the Law of Scotland by JH Millar, published in 1893):

"And sicklike, his Majesty, with advice foresaid, statutes and ordains, that all actions competent of the law, upon heritable bonds, reversions, contracts, or others whatsoever, either already made, or to be made after the date hereof, shall be pursued within the space of forty years after the date of the same ..."

The original Scots can be found set out in the opinion of Lord Mackay of Drumadoon in Doreen Anne Redford v James Smith (unreported, 16 July 2002) at para [11]. These were words of limitation. Mr Mundy referred me to the Opinion of Lord Maclean in the third action between these parties - Bain v Bain (unreported, 7 January 1994) -to which I have already referred. Certain remarks on pages 3-4 of that Opinion supported the first defender's case in the present action. However, Mr Mundy accepted that they were obiter and that I was not bound by them, even though the action was between the same parties. Further, he accepted that the reasoning was flawed, since it appeared to be based upon a wrong assumption that the 1973 Act applied and his Lordship had not been addressed fully on the authorities. Later that same year Lord Maclean decided the case of Porteous's Executives v Ferguson 1995 SLT 649 in which he held that the right to make up title to the property could be, and in that case had been, extinguished by operation of the long negative prescription prior to the 1973 Act coming into force. He did not mention his apparently conflicting decision in Bain v Bain. The leading authority, however, was Pettigrew v Harton 1956 SC 67. Although Mr Mundy conceded that, "on a simplistic view", that case could be regarded as contrary to his submissions, on closer analysis it was not, since the uninfeft was not in possession and, therefore, required to take action to enforce his rights. Mr Mundy also referred me to a number of other cases, including Lady Cardross v Graham of Buchlivie (1710) M 10657 and Cubbison v Hyslop (1837) 16 S 112, both cited in the footnote to Johnson, Prescription and Limitation at para 3.57, and to the commentary in Millar at pages 79 and 82. Finally he referred me to the decision of Lord Mackay of Drumadoon in Redford v Smith. He recognised that that decision was against him in that Lord Mackay had interpreted the decision in Pettigrew v Harton as proceeding on the basis that the rights of a uninfeft proprietor to make up and complete title to land could be extinguished by the negative prescription. But he submitted that that decision was wrong; and if I too thought it was wrong I should say so. Pettigrew v. Harton had proceeded by analogy with a jus crediti. But we were here dealing with a personal right of property, which was not the same thing. He referred me to Sharp v Thomson 1997 SC (HL) 70 to show that the concept of "property" was somewhat flexible. He submitted that the law now recognised something in-between a personal right on the one hand and a right of infeftment on the other. By virtue of the right of inheritance, the late Robert McMurtrie had had a personal right to property, more than just a jus crediti. That right did not prescribe.

Argument for the pursuer

[12] For the pursuer, Ms Coutts submitted that in 1961 an uninfeft proprietor had a personal right that was cut off by prescription. All personal rights and obligations were moveable property which were capable of being extinguishable by prescription. Only a right of heritable property was not lost non utendo. Given these two separate aspects, the question in Pettigrew v Harton was: was a right under a Will a personal right, and therefore a moveable right extinguishable by prescription; or a right of property, a heritable right which would be unprescribable. Pettigrew v Harton was the best statement of the law that would have applied in 1961. References to the 1617 Act were a red herring. The 1617 Act provided, in the first part, that in relation to heritable property, if you were infeft for 40 years and in possession, your right was not open to challenge. The second part provided the other side of the coin, namely that if you had a challenge and did not raise it within 40 years, you were barred from doing so. Pettigrew v Harton was not interpreting the 1617 Act. The point was whether the right in question was a personal right or a right of property. A personal right prescribed under the law of moveable property. Ms Coutts referred me to the Opinion of the Lord Justice Clerk (Thomson) at page 73, that of Lord Patrick at page 74 and that of Lord Macintosh at page 76. I was also referred to Paul v Reid 1814 FC and Robertson v Robertson M 10694. She submitted that after 1961, Robert McMurtrie, because he was not infeft, had no real right. He had lost his personal right before the 1970 missives. Accordingly, the missives were invalid to pass any property to the first defender. In response to Mr Mundy's submission that there was something in between a personal right and a real right, she said that Sharp v Thompson did not have any bearing on this issue. Macdonald v Scott's Executors 1981 SC 75, a case decided under the 1973 Act, illustrated that anything short of a real right could always prescribe. She referred me also to Craigie, Scottish Law of Conveyancing, Moveable Rights at page 272-3 and to Millar at page 89. Any interest in heritage that is not recorded is a personal right and is lost if not made real by recording within the prescription period. Porteous's Executors was correctly decided, in contrast to Bain v Bain, in which something had plainly gone wrong. Redford v Smith was also correctly decided, although it did not distinguish between a Will and intestacy. In the present case, where Robert McMurtrie had acquired his rights under the rules of intestacy, the case for prescription was even stronger. In conclusion, Ms Coutts submitted that Mr Mundy was inviting me not to follow the Inner and Outer House authority but instead to prefer a line taken in the commentary in Johnston, Prescription and Limitation, which commentary was all made in the context of the 1973 Act. I was bound by authority and should reject the defenders' argument. However, even if I were persuaded to follow the line taken by Johnson in paragraph 3.57, this did not assist the first defender since he was not in possession and required to take action.

Decision

[13] I have to confess that I was at first attracted by Mr Mundy's argument. Some of the older cases to which I was referred seemed to point in conflicting directions. However, having carefully considered both arguments, I am persuaded that the decision in Pettigrew v. Harton is binding authority for the proposition that the right of an uninfeft proprietor to make up and complete title to land can be extinguished by the negative prescription. I need not set out the passages which drive one to this conclusion since they are set out fully in the opinion of Lord Mackay of Drumadoon in Redford v Smith at para [19]. Even if I had not been persuaded that the point was decided in Pettigrew, I would have thought it inappropriate to differ from the analysis in Redford v Smith. It does not seem to me that in a field such as this constant re-interpretation or innovation is desirable.

[14] If this is the correct interpretation of the authorities, it follows that the pursuer is entitled to assert that any right to the subjects to which Robert McMurtrie succeeded, upon the death intestate of his mother, prescribed in 1961, that being 20 years after the death of the last infeft proprietor of the subjects, John McMurtrie. It would follow from that that Robert McMurtrie had no right of property with which to make a contract for sale to the first defender in 1970. However, since this discussion at Procedure Roll is only on the defenders' plea-in-law, I do not need to go so far as to decide that. I was invited, in view of the many complications in this case, to put the case out By Order, and that is the course I propose to take.