Pettigrew v Harton
| Jurisdiction | Scotland |
| Judgment Date | 04 November 1955 |
| Docket Number | No. 8. |
| Date | 04 November 1955 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Strachan.
PrescriptionLong negative prescriptionNon valens agerePurported bequest of heritable property in liferent and feeAction by beneficiaries to reduce title completed on basis of intestacyWhether pursuers' rights imprescriptible as being rights of propertyWhether fiar valens agere during currency of liferentConveyancing (Scotland) Act, 1924 (1.4 and 15 Geo. V, cap. 27), sec. 17.
The Conveyancing (Scotland) Act, 1924, by sec. 17, reduces the period of the long negative prescription from forty years to twenty years.
Title was completed to certain heritable property on the basis that the deceased proprietrix had died intestate. More than twenty years after her heir had obtained a decree of general service, an action for reduction of titles based on this decree was brought by a mother and daughter, who founded on a holograph writing of the deceased which purported to bequeath the property to them in liferent and fee.
Held (1) that the pursuers' rights, assuming that they could be established, were not rights of property in land but were merely personal rights which were subject to prescription; (2) (rev.judgment of Lord Strachan) that the existence of the mother's claim to be liferentrix did not have the effect of entitling the daughter to plead non valens agere cum effectu; and, accordingly, (3) that the claims of both pursuers had prescribed.
On 28th May 1954 Mrs Agnes Armitage or Pettigrew and her mother, Mrs Mary Ann Harton or Armitage, brought an action against Mrs Sarah Elizabeth M'Morrin or Harton and others for declarator that a holograph writing dated 3rd May 1928 constituted a valid will of the late Mrs Elizabeth Robertson or Harton (mother of the second pursuer and of the first defenders deceased husband); for further declarators to the effect that in terms thereof the pursuers were respectively the sole proprietrix and the liferentrix of heritable subjects known as Kimmiter Green Cottage; and for reduction of a notice of title to the subjects recorded on 21st June 1934 in favour of John Wilson Harton (the first defender's husband) and reduction of various subsequent deeds relating to the property.
The following summary of the pleadings is taken from the opinion of the Lord Ordinary (Strachan):"The deceased Mrs Elizabeth Robertson or Harton died on 11th November 1932. For many years prior to her death she had lived at Kimmiter Green Cottage, Annan, and from 1912 onwards she had been the proprietor of the heritable subjects comprising that cottage and some six acres of adjoining land. She was survived by a son and daughter, namely, John Wilson Harton and Mrs Mary Ann Harton or Armitage. It appears that after her death her estate was administered on the basis that she had died intestate. On 25th April 1934 her son obtained a decree of general service as her heir-in-general and, on 21st June 1934, he made up title to the heritable property in his own name as heir by recording a notice of title in the Register of Sasines of the Burgh of Annan. The pursuers in this action are (first) Mrs Agnes Pettigrew, who is a daughter of the deceased's daughter, and (second) the deceased's daughter herself. They say that the deceased left a holograph writing dated 3rd May 1928, which was later registered in the Books of Council and Session on 3rd December 1951. They maintain that that writing was a valid testamentary writing and that the deceased thereby bequeathed the heritable property, or alternatively part of it, to the second pursuer in liferent and to the first pursuer in fee. They have therefore raised this action to have it declared that the holograph writing constitutes a valid will of the deceased, and there are consequential conclusions for declarator of the pursuers' rights to the heritable property in virtue of the holograph writing and for reduction of the notice of title in favour of the deceased's son and of certain subsequent deeds relating to the property. The deceased's son died on 4th May 1951. The first defender is his widow, who succeeded to the property under his will and who has since sold part of it. There are other defenders who are called for any interest they may have, but they do not now insist in their defences."
The defenders pleaded, inter alia:"(2) The pursuers being barred from insisting in this action by the operation of the negative prescription, the action should be dismissed."
On 27th May 1955, after a Debate Roll discussion, the Lord Ordinary repelled the defenders' second plea in law and quoad ultraallowed a proof before answer.
At advising on 4th November 1955,
LORD JUSTICE-CLERK (Thomson).Mrs Harton died on 11th November 1932, owning certain heritage. She left a son, John, and a daughter, Mrs Armitage. On the footing that Mrs Harton had died intestate, John on 25th April 1934 obtained a decree of general service as heir-in-general of his mother and on 21st June 1934 recorded a notice of title in his favour. Various transactions have followed. On 28th May 1954, i.e., more than twenty years since Mrs Harton's death but less than twenty years since the recording, Mrs Armitage and her daughter Mrs Pettigrew have raised the present action for
declarator that a holograph writing dated 3rd May 1928, bequeathing the heritage to Mrs Armitage in liferent and Mrs Pettigrew in fee, constitutes a valid will of Mrs Harton, and for the cutting down of the decree of general service and all that has followed thereon. The defenders plead the long negative prescription, but the Lord Ordinary has held that the plea is elided because Mrs Pettigrew was non valens agere cum effectu. The ground upon which she is said to be so is that, as the holograph writing gave to Mrs Armitage a liferent of the subjects, Mrs Pettigrew could not have obtained effective possession of them at any time during the prescriptive period, even if she had taken actionThere are certain cases of now venerable antiquity where fiars have been held to be excused from insisting on their rights within the prescriptive period because of the existence of a liferent. Their effect is stated in Bell's Principles (sec. 627) thus:"Claims which cannot at the time be made effectual do not prescribe; so a fiar, while excluded by a liferenter, is under no necessity to bring forward his claim." The principle on which this statement depends is earlier in the section said to be that "no man can be held to abandon a right by abstaining from an act which he has no capacity to perform, or which is of no avail if performed." It is put on a purely practical basis in Earl of Lauderdale v. Viscount of OxenfordUNK1 by the words "the Lords never put parties to the necessity of intenting processes where these processes can serve to no purpose but to stop prescription."
In what precise circumstances a claimant to a fee who has failed to insist on his right is entitled to avail himself of the excuse that the presence of a liferent made his insistence ineffective is not altogether clear. The original cases are those of adjudgers and wadsetters. Thus inBrown v. HepburnUNK2 the wadsetter successfully pleaded that during the period of the existence of a liferent he could not have made effective his right to the enjoyment of the fruits. He was therefore "excluded by a liferenter," within the meaning of Bell's statement. The case of Shepherd v. Grant's TrusteesUNK3 shows that the excuse was available to the claimant to a fee who was not a creditor on the view that during the period of the liferent he could not have effectively enjoyed the fee. It is not necessary, however, to discover the precise scope or limitation of the doctrine, as there is no trace in any of the cases of its being applied unless there was a liferent actually subsisting. This seems to me to distinguish the previous cases from the present.
The exception of non valentia agere from small beginnings was gradually expanded in our older law. To use the words of Lord President Cooper in Campbell's TrusteesSC4 (at p. 56): "The plea of non valens agere, which initially and properly was concerned with the personal capacity of the person against whom prescription was pleaded, assumed the new form of non valens agere cum effectu, and the emphasis was shifted to the last two words." In my view, there is no justification
for extending the doctrine one inch beyond the decided cases. General statements like Bell's, which I have just quoted, or Baron Hume's (Lectures, vol. iii, p. 76) that "a...To continue reading
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