Cooper Scott v. Gill Scott and Others [1924] ScotLR 191 (18 January 1924)

Cooper Scott v. Gill Scott and Others [1924] ScotLR 191 (18 January 1924)

The defect in the deed of entail—contradiction between the narrative and dispositive clauses—is not an intrinsic nullity but an extrinsic one, as it requires reference to external documents to establish the error. The dispositive clause is unambiguous and thus the deed is habile to found prescription. As the institute possessed the estate under the deed for over forty years, both positive and negative prescription operate to bar the pursuer's claim. The reclaiming note is refused and the Lord Ordinary's judgment is affirmed.

Citation
[1924] ScotLR 191
Parties
Pursuer: John Albert Douglas Cooper Scott; Defender: Robert John Gill (otherwise Robert John GillScott); Defender: heirs-male whomsoever of the deceased Mrs Jane Gill or Young
Jurisdiction
Scotland
Judgment Date
18 January 1924
Procedural Posture
Action of Reduction and Declarator / Inner House, First Division, Court of Session, Reclaiming Note (appeal) Against Lord Ordinary's Judgment
Outcome
Reclaiming note refused; judgment of Lord Ordinary affirmed; defender assoilzied (absolved) from conclusions of the action.
Legal Topics
Positive Prescription, Negative Prescription, Deed of Entail, Intrinsic and Extrinsic Nullity, Trust Dispositions, Succession, Conveyancing (scotland) Act 1874, Act 1617, Cap. 12
Property Law Trusts and Estates Prescription (limitation of Actions) Conveyancing Positive Prescription Negative Prescription Deed of Entail Intrinsic and Extrinsic Nullity +4 more

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Parties

John Albert Douglas Cooper Scott

Pursuer

Robert John Gill (otherwise Robert John GillScott)

Defender

heirs-male whomsoever of the deceased Mrs Jane Gill or Young

Defender

Procedural Posture

Action of Reduction and Declarator / Inner House, First Division, Court of Session, Reclaiming Note (appeal) Against Lord Ordinary's Judgment

Legal Issues

  1. 1 Whether a deed of entail that is inconsistent between its narrative and dispositive clauses is intrinsically null and thus incapable of founding prescription.
  2. 2 Whether the positive and negative prescription protect a title where the dispositive clause is unambiguous but contradicted by the narrative clause.
  3. 3 Whether the pursuer's right to reduction is excluded by the running of prescription.

Ratio Decidendi

The defect in the deed of entail—contradiction between the narrative and dispositive clauses—is not an intrinsic nullity but an extrinsic one, as it requires reference to external documents to establish the error. The dispositive clause is unambiguous and thus the deed is habile to found prescription. As the institute possessed the estate under the deed for over forty years, both positive and negative prescription operate to bar the pursuer's claim. The reclaiming note is refused and the Lord Ordinary's judgment is affirmed.

Court Disposition

Reclaiming note refused; judgment of Lord Ordinary affirmed; defender assoilzied (absolved) from conclusions of the action.

Orders

  • Refusal of reclaiming note (appeal)
  • Affirmation of Lord Ordinary's judgment