Bain v Bain & Ors [2006] ScotCS CSOH_142 (13 September 2006)

Bain v Bain & Ors [2006] ScotCS CSOH_142 (13 September 2006)

The court held that 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 negative prescription. Therefore, it is competent for the pursuer to assert that Robert McMurtrie’s right prescribed in 1961, and he had no right to contract for sale in 1970.

Citation
[2006] ScotCS CSOH_142
Parties
Pursuer: Robert Bain; First Defender: Andrew Robert Bain; Second Defender: John McMurtrie; Third Defender: Mary McMurtrie
Jurisdiction
Scotland
Judgment Date
13 September 2006
Procedural Posture
Civil / Procedure Roll Hearing on Preliminary Pleas (relevancy and Specification)
Outcome
Case put out By Order for further procedure; no final determination on merits at this stage.
Legal Topics
Prescription of Heritable Rights, Extinction of Personal Rights, Title to Heritable Property, Negative Prescription, Reduction of Decrees
Property Law Succession Law Civil Procedure Prescription of Heritable Rights Extinction of Personal Rights Title to Heritable Property Negative Prescription Reduction of Decrees

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Parties

Robert Bain

Pursuer

Andrew Robert Bain

First Defender

John McMurtrie

Second Defender

Mary McMurtrie

Third Defender

Procedural Posture

Civil / Procedure Roll Hearing on Preliminary Pleas (relevancy and Specification)

Legal Issues

  1. 1 Whether the right of an uninfeft proprietor to make up and complete title to land can be extinguished by negative prescription under Scots law
  2. 2 Whether Robert McMurtrie had any right to the property at the time of the 1970 missives

Ratio Decidendi

The court held that 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 negative prescription. Therefore, it is competent for the pursuer to assert that Robert McMurtrie’s right prescribed in 1961, and he had no right to contract for sale in 1970.

Court Disposition

Case put out By Order for further procedure; no final determination on merits at this stage.

Orders

  • Case to be put out By Order for further procedure in light of the court's opinion on the preliminary issue.