THOMAS BRUCE of Arnot v JAMES CARSTAIRS BRUCE of Balchrystie (Court of Session)

In consequence of this decision, Mr Bruce proceeded to sell the whole estate of Tillycoultry; and, at the distance of more than twenty years, the pursuer having, by the failure of the intermediate substitutes, become the next heir of entail, raised the present action against him, proceeding on the narrative of the prohibition against selling contained in the entail of Tillycoultry, and concluding to have it declared that the defender was accountable to the substitutes, in their order, for the price obtained for the said lands, &c.

But, supposing that the question were still open, the silence and acquiescence of the pursuer during more than twenty years after the sale of the entailed estate, during which time the defender has been allowed to consume the price in the bona fide belief that he was not liable to any claim like the present, forms a personal objection against the pursuer which must bar him from insisting at this distance of time in the present action.

The pursuer answered —The judgment in 1799 only found, that the resolutive clause in the entail of Tillycoulty did not apply to a sale; and that, therefore, a disposition for onerous causes was valid and effectual to the purchaser. If, therefore, the present question were competently raised by the summons in that action, it is still undecided. In fact, the only question then tried was the effect of the resolutive clause, and the judgment was applicable solely to the onerous purchaser, finding the letters in the suspension orderly proceeded.

As to acquiescence, it is clear that no silence, short of the long prescription, could deprive a party of his right of insisting in a claim of this kind, which was only to enforce a legal obligation incumbent on the defender, and exigible at any time it might be for the interest of the pursuer to insist in it.

The Lord Justice-Clerk said that, having been again called upon to reconsider the opinion which he had delivered in the case of Ascog, it had been strengthened and confirmed by further reflection, and by the new light which had been thrown on the subject at the last advising of that case. And that, for the reasons pleaded by the pursuer, he did not think there was any thing in the alleged specialties of the present case to relieve the defender of the obligation to account for the price obtained for the estate which he had sold in violation of the prohibition under which he held it.