Duke of Roxburghe v Scott
| Jurisdiction | Scotland |
| Judgment Date | 21 October 1890 |
| Date | 21 October 1890 |
| Docket Number | No. 3. |
| Court | Court of Session |
Lord Gifford.
Superior and Vassal—Prescription—Possession.—
A person in possession of lands which were alleged to be kirk lands resigned them in 1806 to the Crown for new infeftment and took a charter on a blench tenure for a penny Scots si peteretur tantum. Up to this date the lands had been held in feu of a subject-superior (who held his superiority under a strict entail), for a reddendo of £6 Scots. After obtaining the crown charter the vassal held the lands for more than the prescriptive period, but paid the feu-duty of £6 Scots to the subject-superior, who remained infeft in the superiority; no payment was ever demanded by the Crown, except some payment on the charter being granted, the character of which was not ascertained. Some of the vassals from 1806 downwards were enrolled as freeholders, and voted as such.
The subject-superior having in 1871 brought against the vassal a reduction of the crown title, as having been unwarrantably obtained in prejudice of his rights as superior, the vassal pleaded prescription. Held (per Lord Gifford, Ordinary) that there had been no sufficient possession by the vassal on that title, and the plea of prescription repelled, and the title reduced.
The following narrative is taken from the Lord Ordinary's opinion:—
‘The object of the action is to reduce and set aside certain crown charters which the defender or her authors have obtained in the lands of Woodend or Wooden and others, the dominium utile of which belongs to the defender, and to have it declared that the pursuer, the Duke of Roxburghe, is vested with the superiority or dominium directum of the defender's lands. The question therefore really is, who is the superior of the defender's property—the Crown or the pursuer?
‘The Lord Advocate, as representing the Crown, was called as a defender, but has stated no defence, and the record has been made up between the pursuer, the Duke of Roxburghe, claiming the superiority, and the defender, Miss Scott, the proprietrix of Wooden, who claims to hold directly of the Crown. The Lord Ordinary has assumed that the defender, Miss Scott, is entitled to maintain all the pleas which might have been stated by the Crown.
‘Preliminary defences were. lodged by the defender, who pleaded prescriptive possession upon an exclusive title, that is, under the crown charters sought to be reduced. As it became obvious, however, that the preliminary defence was in its essence the defence upon the merits, or at least one of the defences upon the merits, the preliminary defences were reserved, the production satisfied, and the record closed of new upon the whole cause.
‘As the point of possession was exceedingly material, and as parties were at issue upon that and upon other matters of fact, a proof was allowed. A short proof was led, a great variety of titles and documents were recovered, and the Lord Ordinary heard a full debate on the whole cause. He is of opinion that the pursuer is entitled to decree in terms of the whole conclusions of the action.
It is proved by the title-deeds produced that the defender's lands of Wooden were...
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