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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bain v. Grant [1884] ScotLR 22_132 (18 November 1884) URL: http://www.bailii.org/scot/cases/ScotCS/1884/22SLR0132.html Cite as: [1884] ScotLR 22_132, [1884] SLR 22_132 |
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In 1756 a presbytery resolved to convey to a heritor, at a stipulated rent or feu-duty, the ground forming a glebe which lay in a situation inconvenient for the minister of the parish. No deed of conveyance was ever executed. In 1884 the minister of the parish and the presbytery sought to vindicate the glebe from the heir of the heritor, who pleaded prescriptive right. Held (assuming the validity of the plea if there had been a deed of conveyance) that a mere resolution of the presbytery to grant a title was not a good ground on which to found prescription.
The parishes of Duthil and Rothiemurchus were about the year 1630 united into one parish.
At a meeting of the Presbytery of Abernethy, held at Rothiemurchus on the 6th July 1756, a joint petition was presented by Captain Patrick Grant, younger of Rothiemurchus, and Mr Patrick Grant, minister at Duthil. The petition stated that there was a glebe belonging to the minister of Duthil, situated so as to be “in the bosom of the Mains of Rothiemurchus,” and that the situation was distant from the manse, and very inconvenient for both parties. They prayed the presbytery to make over and dispone the said glebe to Captain Grant, his heirs and successors in perpetuity, he being willing to pay the minister of Duthil and his successors in office a yearly rent or feu-duty of twenty pounds scots.
The presbytery thereafter appointed two persons to inspect the glebe, and to present a report to the next meeting of presbytery, giving an estimate of the value and yearly rent of the same. At the next meeting of presbytery, held at Aviemore on 3rd August 1756, the report was presented, which after describing the glebe as to the south of Gualin Claoigh, to the west of the kirk-yard, to the north of Lochan Coinich, to the east of the Crasks of Liandell and Polnageddis, to the north betwixt it and the Spey, and stating that the reporters “having perambulated amid the said glebe, commonly known by the name of Croft-na-h'eglaish or Church Croft, did seriously consider of the extent and boundaries thereof, and we judge and compute it to be about an ‘acker and and an half acker’ of arable ground, which conform to the best of our skill we esteem worth six pounds Scots per acker, amounting in whole value to sum of nine pounds money aforesaid.”
The presbytery thereafter having considered the report and petition, and for various reasons stated in the minute, such as the fact that the glebe was “a small spot of ground situate in the very bosom of Rothiemurchus, his mains,” the inconvenience both to the owner of Rothiemurchus and to the minister of Duthil caused by the position of the glebe, the support which the Rothiemurchus family had given to religion and the minister, and the rent which the laird of Rothiemurchus promised to pay, which was greater than the minister of Duthil had before secured, unanimously agreed that the moderator should sign a deed in name of the presbytery, “disponing, transferring, and making over the said glebe to Captain Patrick Grant of Rothiemurchus, his heirs and successors or assignees in perpetuity;” and they also agreed “that writs be at this day extracted to the above effect.” No such deed was executed, or at all events, at the date of the action now reported, none was known to have been ever executed, as no deed transferring the glebe to the proprietor of Rothiemurchus was at the date of this action to be found.
Captain Grant, however, entered into possession of the glebe, and he and his successors in the lands of Rothiemurchus continued to pay the annual feu-duty or rent of twenty pounds Scots to the minister of Duthil.
On 19th October 1883 the Rev. James Bain, the present minister of the parish of Duthil and Rothiemurchus, with consent of the Presbytery of Abernethy, raised an action against Sir John Peter Grant of Rothiemurchus. In this action the pursuer sought declarator “that All and Whole the lands and others sometime called by the name of and known as Croft-na-h'eglaish or Church Croft, extending to 12 acres or thereby, and which is bounded and extends and lies as follows,—viz., to the south of Gualin Claoigh, or ridge of land forming the south side of the churchyard to the west of
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The pursuer stated that the united parish of Duthil and Rothiemurchus was formerly composed of two parishes—viz., Rothiemurchus and Duthil, that each of these had a glebe, and that when the two parishes were united in 1630 these two glebes became the glebe of the new parish. The whole of the ancient parish of Rothiemurchus lay within the lands of the defender, and had formerly been worked by the minister of Duthil; but, as shown by the aforementioned minutes of presbytery, an arrangement was come to in 1756 by which the proprietor of Rothiemurchus paid twenty pounds Scots yearly to the minister of Duthil in lieu of his glebe. The defender, Sir John Peter Grant, was duly infeft in the kirk lands of Rothiemurchus on 18th December 1874. It was averred that these lands did not include the aforesaid glebe.
The pursuer also averred that the twenty pounds Scots yearly had been paid as rent for the lands, and that the defender had no right or title to the property of the glebe. He averred that the boundaries as set forth in the old titles contained 12 acres, and that though it was stated in some of them that the glebe was 1
The defender alleged that in the year 1756 the glebe of Rothiemurchus had been disponed and conveyed in property to him, as shown by the minutes of presbytery, although the conveyance itself had gone amissing. Since that date the said glebe had been possessed as part of the estate of Rothiemurchus, and under the titles thereof, or otherwise and alternatively under the said title obtained from the minister and presbytery. He also stated—“The area of ground described in the summons and shown on the Ordnance plan produced is not and never was the glebe of the said parish. It consists to a large extent of ground reclaimed from the river Spey about forty years ago, when the former course of the said river was embanked and its course diverted considerably westward. The said area of ground now claimed has been from time immemorial, or at all events for the prescriptive period, possessed by the defender and his authors under their infeftments as part of the estate of Rothiemurchus, by which the said area of ground is on all sides surrounded. The said alleged area of ground is about sixteen miles from the pursuer's manse.” The pursuer pleaded—“The defender Sir John Peter Grant having no right to the lands described in the summons, and the same being the glebe of the said ancient parish of Rothiemurchus, the pursuer is entitled to decree of declarator and removing as concluded for.”
The defender pleaded—“(2) The area and ground claimed being the property of the defender, and having been possessed by him and his authors for the prescriptive period, the defender should be assoilzied.”
After proof the Lord Ordinary found—That prior to 1756 the lands in the parish of Rothiemurchus, some time called and known as Croft-na-h'eglaish or Church Croft, extending to one acre Scots and one-half or thereby of arable ground, formed the glebe of the said parish; that on 3d August 1756 the presbytery agreed to transfer that glebe to Captain Patrick Grant, then of Rothiemurchus, his heirs, successors, or assignees in perpetuity, for an annual payment of twenty pounds Scots as a yearly rent or feu-duty; that that agreement was ultra vires of the presbytery, and was and is invalid and ineffectual; that the pursuers were not precluded by that agreement, or by possession following thereon, from asserting the right of the minister of that parish to that glebe, and that the defender had failed to instruct a sufficient title to support his plea of prescription. He therefore repelled the second plea-in-law for the defender, and before answer remitted to Mr George J. Walker, land valuator, Aberdeen, to inspect the ground and report as to the boundaries of the glebe, having regard to the description of the same contained in the minutes of the Presbytery of Abernethy of 3d August 1756, and also to the foregoing finding as to the extent of the superficial area.
“ Opinion.—It is proved by the minutes of presbytery that prior to 1756 the minister of Rothiemurchus possessed a glebe in the situation alleged by the pursuers, and the defender is not in a position to maintain that the minutes are inadmissible in evidence against him, because he alleges that he and his predecessors have possessed the ground in question under a conveyance granted by the presbytery in conformity with the
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It cannot be disputed that the agreement to transfer the glebe in perpetuity to the laird of Rothiemurchus was ultra vires of the presbytery.
It would appear that the cure was vacant at the date when the presbytery resolved to make the transfer. But had it been otherwise the consent and concurrence of the minister would not have served to validate the transaction, which was plainly illegal, as an alienation of part of the benefice.
The question therefore comes to be, whether the defender has acquired by prescription a right of property in the glebe. There can be no doubt that the title of a heritor to ground which was formerly glebe may be supported by prescription, and it is admitted that the proprietors of Rothiemurchus have been in undisturbed possession since the transaction of 1756.
But the defender has produced no title to support a plea of prescription. It is said that glebe land being allodial a personal title is sufficient, and in the case of Liston v. Smith, Hume 475, there is authority for holding that a charter would be sufficient although not followed by infeftment. If the defender could have referred his possession to a conveyance from the minister or the presbytery there might have been a question whether such a title might not have been supported by the decision in Liston v. Smith. But he produces no title whatever except the agreement to grant a perpetual right which is embodied in the minutes of presbytery. The only ground of possession, therefore, is not a personal title to land, but an illegal and ineffectual agreement to grant a title. It is said that possession for the prescriptive period bars the objection that the title proceeded a non domino or a non habente potestatem. But this is true only where possession has been held by a title complete in itself, because it is in that case alone that the Statute 1617, c. 12, bars inquiry as to the right by which such title has been constituted. The principle is stated by Lord Moncreiff in the well—known case of the Lord Advocate v. Graham, 7 D. 183, where he says:—‘I hold that it is the purpose of prescription to exclude all inquiry as to whether titles habile in their form, upon which prescriptive possession has followed, were in their original nature and constitution good or bad, and specially the inquiry whether the author from whom they have proceeded had power to grant them or not.’ But it is indispensable that the title should be habile in form; and the defender has been unable to satisfy that condition.
The same point arose for judgment in Scott v. Ramsay, 5 S. 340 (N.E. 367), where it was held that an agreement by the presbytery to grant a feu of a glebe was insufficient to support a prescriptive right, no such feu having in fact been granted; and the decision appears to me to rule the present case.
It was maintained, alternatively, that the defender's title to the estate of Rothiemurchus was sufficient to support his possession. But the possession of the glebe cannot be referred to the title to the estate. It is not suggested that the title as it stood in 1756 was altered in respect of the agreement, and that the possession is referable to the agreement is manifested by the payment of the stipulated rent or feu-duty of twenty pounds Scots.
The pursuers maintain that the glebe must be held to have extended to 12 acres. But this is inconsistent with the minute upon which they themselves found, and in which it is set forth that ‘two men of skill appointed by the presbytery for the purpose having perambulated around the said glebe, commonly known by the name of Croft-na-h'eglaish or Church Croft, did seriously consider of the extent and boundaries thereof, and judged and computed it to be about an acre and an half of arable ground.’ There is no room for doubt as to the meaning of this report, and the alleged custom by which it is proposed to qualify its construction is clearly inadmissible, and if it were proved would be inapplicable to such a document. The pursuer's case as to the extent of the glebe appeared to be founded mainly upon a supposed presumption that a grass glebe must have been designed of the statutory extent. But there is no such presumption. The glebe was arable; and it does not appear whether it was designed under the statutes or whether it had been enjoyed as a part of the benefice before the Reformation. But in either case it is not at all impossible that whether from deficiency of kirk lands or from some other cause the glebe may have been of less than the statutory dimensions. It is said that in that view the pursuer will be entitled to an addition to make up the deficiency. But that cannot be assumed in this action. The pursuer is the minister of a united parish, and his right to an additional designation —which may probably be found to depend upon the extent of glebe land be enjoys in all taking both parishes into account—can only be determined in a proper process for that purpose.
The proof which has been led does not enable me to determine the boundaries, and considering the extent to which the ground has changed since 1756 this is not surprising. Assuming the pursuer's right to a glebe of one acre and a-half to be established, the most convenient course will be to obtain a report from a man of skill before disposing of the conclusions as to the boundaries.”
Thereafter, on consideration of Mr Walker's report, the Lord Ordinary issued the following interlocutor—“Finds that All and Whole the lands and others sometimes called and known as Croft-na-h'eglaish or Church Croft, lying within the parcels of land forming the estate of Rothiemurchus, as follows, viz., to the south of Gualin Claoigh, to the north of Lochan Coinich, to the east of the Crasks of Liandell and Polnageddis, to the north betwixt it and Spey, and extending to one acre and a-half of Scots measure, or one acre and 891 decimal parts of an acre Imperial measure, as the same is delineated and coloured pink on the plan, constitutes, forms, and is the glebe of the ancient parish of Rothiemurchus, now part of the present united parishes of Duthil and Rothiemurchus; and to said extent and effect, finds, decerns, declares, and ordains in terms of the conclusions of the summons: Quoad ultra assoilzies the defender: Finds the pursuer entitled to expenses, subject to modification.”
The Lord Ordinary subsequently modified the expenses by one-third in respect of the pursuer's
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Counsel for Pursuer— Pearson— M'Kechnie. Agent— H. W. Cornillon, S.S.C.
Counsel for Defender— Mackintosh— Guthrie— J. P. Grant. Agents— J. Clerk Brodie & Sons, W.S.
