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Ex Facie Validity and Hability This thesis has been submitted in fulfilment of the requirements for a postgraduate degree (e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Positive Prescription of Landownership in Scots Law: The Requirement for the written deed, with particular reference to the concepts of ex facie validity and hability Colin Matthew Campbell Presented for the Degree of Doctor of Philosophy The University of Edinburgh 2014 Table of Contents Table of Contents ........................................................................................................ i Acknowledgements .................................................................................................. viii Declaration ................................................................................................................ ix Abstract ...................................................................................................................... x Lay Summary ........................................................................................................... xi List of Abbreviations .............................................................................................. xii Chapter I - Introduction ........................................................................................... 1 A. Definition .................................................................................................. 1 B. Context and Overview ............................................................................... 2 C. Methodology ............................................................................................. 6 1. Historical/Doctrinal ....................................................................... 6 2. Comparative/Doctrinal .................................................................. 7 Chapter II – Roman law and Positive Prescription in a Comparative Context 10 A. Introduction ............................................................................................. 10 B. Classical Roman Law .............................................................................. 11 C. Usucapio – The Requirements ................................................................ 12 1. First Requirement – continuous possession for the relevant period ...................................................................................................... 12 2. Second Requirement – there must be an iusta causa, a good cause for the commencement of possession ......................................... 13 3. Third Requirement – possession must be acquired in good faith (bona fides) ................................................................................. 17 4. Fourth Requirement – the thing must be capable of being owned, a res habilis ..................................................................................... 20 5. Fifth Requirement – the thing must not at any time have been stolen or taken by force ................................................................ 20 D. Conclusion regarding Classical Roman law in comparison to Scots law 23 E. The later reforms to usucapio and the introduction of longi temporis praescriptio and longissimi temporis praescriptio ................................. 24 F. Conclusion regarding later Roman law in comparison to Scots law ....... 26 i Chapter III – Positive Prescription of Landownership in Early Scots law ....... 31 A. Introduction ............................................................................................. 31 B. The law prior to the 1594 Act ................................................................. 32 1. Leges Quatuor Burgorum ........................................................... 32 2. Sinclair’s Practicks ..................................................................... 37 3. Balfour’s Practicks ...................................................................... 38 C. The law between the 1594 Act and the 1617 Act – with particular reference to the writings of Sir Thomas Hope ........................................ 39 1. The Acts ...................................................................................... 39 (a) The Prescription Act 1594 .............................................. 39 (b) The Prescription Act 1617 .............................................. 45 2. Tabular Comparison of the two Prescription Acts ....................... 53 3. The Exceptions ............................................................................. 56 (a) Possible exception to the 1594 Act – The Crown ........... 56 (b) Exception to the 1594 Act and 1617 Act – Minors ......... 57 (c) Exception to the 1617 Act – Falsehood .......................... 58 (d) Exception to the 1617 Act – The Ratification of the Acts of Interruption 1633 ............................................................. 59 4. The Ambiguities between the 1594 and 1617 Acts ..................... 59 (a) Ambiguity – Which deeds were essential for conveyancing? ................................................................. 60 (b) Ambiguity – Common law and statutory bases for positive prescription with varying temporal requirements? ......... 61 5. Summary ...................................................................................... 65 D. The law between the 1594 Act and the 1617 Act – with particular reference to the writings of Sir Thomas Craig ........................................ 66 1. The justification for positive prescription in feudal law .............. 66 2. The necessities for the creation of a new feu by prescription ...... 69 3. Craig’s awareness of positive prescription in Scots law .............. 71 4. Summary ...................................................................................... 72 E. The law after 1617 Act ............................................................................. 72 F. Conclusion .............................................................................................. 74 Chapter IV – Ex Facie Validity .............................................................................. 77 A. Introduction ............................................................................................. 77 B. Development of the concept and terminology of ex facie validity: prior to Bell’s Principles ...................................................................................... 78 ii 1. Stair, Mackenzie and Forbes ........................................................ 78 2. Early cases .................................................................................... 79 3. Bankton ........................................................................................ 80 4. Miller v Dickson ........................................................................... 81 5. Erskine.......................................................................................... 82 6. Scott v Bruce Stewart ................................................................... 82 7. Paterson v Purves ....................................................................... 83 8. Duke of Buccleuch v Cunynghame ............................................... 84 9. Case law from 1827 to 1837 ........................................................ 86 C. The Development of the concept and terminology of ex facie validity: Bell’s Principles ...................................................................................... 87 D. Development of the concept and terminology of ex facie validity: after Bell’s Principles ...................................................................................... 88 1. Case law from 1842 to 1868 ........................................................ 88 2. Case law from 1868 to 1900 ........................................................ 90 3. Cooper Scott v Gill Scott .............................................................. 92 4. Abbey v Atholl Properties Limited ............................................... 96 5. Non-application of the strict test for ex facie validity .................. 97 6. Watson v Shields .......................................................................... 98 7. Aberdeen College (Board of Management) v Youngson ............ 101 (a) Introduction .................................................................... 101 (b) The facts of the case ....................................................... 102 (c) The two part failure of the deed in Aberdeen College ... 102 (i) The failure of the deed as a contract which resulted in the deed being held to be insufficient in respect of its terms to constitute in favour of the dispone a title or real right of landownership ..................... 102 (ii) The deed being invalid ex facie due to disclosing the fact of non-ownership on the part of the granter ...........................................................................
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