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Scottish Court of Session Decisions >>
Thomas Nicol v Park of Foulfoordlyes. [1704] Mor 7817 (7 November 1704)
URL: http://www.bailii.org/scot/cases/ScotCS/1704/Mor1907817-042.html Cite as:
[1704] Mor 7817
Not competent to object against a Party's title, without a Legal Interest. - What understood to be a Legal Interest.
Thomas Nicol v. Park of Foulfoordlyes
Date: 7 November 1704 Case No. No 42.
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Thomas Nicol, writer, pursues a reduction and improbation against Park of Foulfoordlyes, of all rights he has upon the lands of Nether Monynet. Alleged; Your title is a comprising led in 1653, whereupon nothing is done within the forty years, and so it is prescribed. Answered; Though this process interrupting it be without the forty years, yet no prescription can run against him; 1mo, Because the 12th act of Parliament 1617, introducing prescription of heritable rights, excepts the case of falsehood, and so improbation is competent, though the right were 100 years old; 2do, This is a wadset containing a reversion in gremio, and so can never prescribe, by a clause in the same act, seeing the wadset ever acknowledges the granter's right, and could never be in bona fide to prescribe the property, prescription being of two kinds, one positive, when a person is in possession by virtue of a title, by the space of forty years uninterrupted; and the second defence, arising from prescription, is the negative, when a party loses his right non utendo by forty years silence; but this can never be obtruded by one brooking allenarly by a redeemable right.——The Lords repelled the allegeance, and found it jus tertii to the wadsetter to object prescription against the pursuer, and sustained process; though it was contended the prescription took off the jus agendi on the apprising, as much as if it had been renounced, prescription being a presumptive legal renunciation of the right.
Fol. Dic. v. 1. p. 519. Fountainhall, v. 2. p. 238.
