Stobie v. Stobie and Others [1921] ScotLR 596 (15 July 1921)

Stobie v. Stobie and Others [1921] ScotLR 596 (15 July 1921)

A decree of special service granted to persons not the true heirs is fundamentally null and open to reduction by the true heir within the vicennial prescription period. Onerous and bona fide third parties acquiring title through such a decree are not protected against reduction, as the defect is radical and the title is voidable until fortified by prescription. The pursuer is entitled to reduction, and the defenders' claims for restitution or security do not lie against the pursuer but against their authors under warrandice.

Citation
[1921] ScotLR 596
Parties
Pursuer: Louisa Stobie; Defender: Janet Stobie; Defender: Margaret Stobie or Adams; Defender: John Sutherland Adams; Defender: Agnes Stobie or M'Killop; Defender: James Alexander Stobie (executor-dative of David Stobie); Defender: Robert Smith; Defender: Mary Agnes Wells or Smith; Defender: Testamentary trustees of Adam Manson
Jurisdiction
Scotland
Judgment Date
15 July 1921
Procedural Posture
Civil / Appeal (reclaiming Motion) From Decree of Reduction
Outcome
Decree of reduction granted; judgment for pursuer affirmed; defenders' reclaiming motion refused.
Legal Topics
Service of Heirs, Reduction of Decree, Prescription, Titles to Land, Bona Fide Purchaser, Heritable Property, Warrandice
Property Law Succession Law Scots Law Service of Heirs Reduction of Decree Prescription Titles to Land Bona Fide Purchaser +2 more

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Parties

Louisa Stobie

Pursuer

Janet Stobie

Defender

Margaret Stobie or Adams

Defender

John Sutherland Adams

Defender

Agnes Stobie or M'Killop

Defender

James Alexander Stobie (executor-dative of David Stobie)

Defender

Robert Smith

Defender

Mary Agnes Wells or Smith

Defender

Testamentary trustees of Adam Manson

Defender

Procedural Posture

Civil / Appeal (reclaiming Motion) From Decree of Reduction

Legal Issues

  1. 1 Whether a decree of special service granted to persons not the true heirs can be reduced at the instance of the true heir within the vicennial prescription period, even where the property has passed to onerous and bona fide third parties.
  2. 2 Whether such third parties are protected from reduction by their good faith and onerosity.

Ratio Decidendi

A decree of special service granted to persons not the true heirs is fundamentally null and open to reduction by the true heir within the vicennial prescription period. Onerous and bona fide third parties acquiring title through such a decree are not protected against reduction, as the defect is radical and the title is voidable until fortified by prescription. The pursuer is entitled to reduction, and the defenders' claims for restitution or security do not lie against the pursuer but against their authors under warrandice.

Court Disposition

Decree of reduction granted; judgment for pursuer affirmed; defenders' reclaiming motion refused.

Orders

  • Decree of reduction of the decree of special service, disposition, and bond and disposition in security as concluded for.
  • Defenders' pleas repelled; no order for restitution or security against the pursuer.