Bain v Bain & Ors [2006] ScotCS CSOH_198 (18 December 2006)

Bain v Bain & Ors [2006] ScotCS CSOH_198 (18 December 2006)

The pursuer is entitled to summary decree reducing the missives, deeds, and decrees founded upon prescribed rights, as he has title to sue by virtue of being in possession and subject to eviction. Exceptional circumstances exist for reduction of the decree in foro, as the factual basis for mala fide is removed by reduction of prior deeds and decrees.

Citation
[2006] ScotCS CSOH_198
Parties
Pursuer: Robert Bain; First Defender: Andrew Robert Bain; Defenders: Others
Jurisdiction
Scotland
Judgment Date
18 December 2006
Procedural Posture
Civil / Summary Decree Motion After Procedure Roll Hearing
Outcome
Summary decree granted in favour of pursuer
Legal Topics
Reduction of Deeds, Prescription, Title to Sue, Decree in Absence, Decree in Foro
Property Law Civil Procedure Reduction of Deeds Prescription Title to Sue Decree in Absence Decree in Foro

Case Brief

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Parties

Robert Bain

Pursuer

Andrew Robert Bain

First Defender

Others

Defenders

Procedural Posture

Civil / Summary Decree Motion After Procedure Roll Hearing

Legal Issues

  1. 1 Whether the pursuer has title to sue for reduction of deeds and decrees relating to property
  2. 2 Whether prescription extinguished the rights of the late Robert McMurtrie prior to the 1970 missives
  3. 3 Whether exceptional circumstances justify reduction of a decree in foro

Ratio Decidendi

The pursuer is entitled to summary decree reducing the missives, deeds, and decrees founded upon prescribed rights, as he has title to sue by virtue of being in possession and subject to eviction. Exceptional circumstances exist for reduction of the decree in foro, as the factual basis for mala fide is removed by reduction of prior deeds and decrees.

Court Disposition

Summary decree granted in favour of pursuer

Orders

  • Reduction of missives dated 19 October 1970 between Robert McMurtrie and first defender
  • Reduction of decree of implement of said missives pronounced by Lord Brand on 20 October 1976