Scottish Court of Session Decisions

Lord Trayner.—In this case we had an able argument from both sides of the bar. On due consideration of that argument and of the whole proof before us, written and parole, I have come to be of opinion that the result arrived at by the Lord Ordinary is well founded and ought to be affirmed. In dealing with this case it is right to keep prominently in view what the Lord Ordinary has pointed out, namely, that we are not here called upon to decide whether the pursuer is entitled to a glebe, or what that glebe should be. The pursuer's claim on the heritors for a manse and glebe can be in no way prejudiced by anything decided in this case. The case before us seems to me to be one in which there are competing claims to certain lands, and the determination as to which of the competing claimants is entitled to be preferred depends upon the title on which their respective claims are based.

The pursuer asks for declarator that the lands known as the Cockshaugh and Toll Park are the glebe of the parish of St Leonard and belong heritably to him and his successors in the cure. The defenders maintain that said lands belong heritably to them, and that the pursuer has no title thereto.

It is most convenient to consider first the title on which the defenders rely. By charter dated February 1512 the Prior of St Andrews conveyed to the defenders' authors, inter alia, the lands of Rathelpie, of which the lands referred to in the summons form a small part. That charter was confirmed by the Crown on 12th February 1572, and a century afterwards the whole heritable rights of the defenders were ratified and confirmed by Parliament—Act 1612, cap. 38. So far as is known no infeftment followed on said charter, but actual possession did. In these circumstances the defenders plead that their charter, followed by possession for more than forty years, gives them an indefeasible title to the lands of Rathelpie, and by consequence to the lands now in question. The answer to this by the pursuer is (1) that the defenders' title was never perfected by sasine, and is ineffectual to confer on the defenders a heritable title to the lands. He further says (2) that the defenders cannot plead the prescription, introduced by the Act of 1617, c. 12, because the privilege thereby introduced is confined to the cases where charter and sasine, or at all events sasines, for forty years preceding the date of any challenge, shall be produced, and that the defenders have not, or have not produced, any sasine; and (3) that the defenders divested themselves of the lands in question in favour of the pursuer's authors by a conveyance contained in a contract of excambion executed in 1854. None of these answers in my opinion can be sustained. The date when giving sasine —that is, possession of land—by symbolical delivery began is variously given by different writers. Stair (ii. 3, 16), on the authority of Craig (ii. 7, 2), says that the “solemnity of seisins by the instrument of a notary” began “about the year 1430,” but that “long thereafter, even near to his time (i.e.,Craig's time) the bailie's seal upon the superior's disposition, charter, or precept, was sufficient to instruct delivery of possession.” Craig's work—the Jus Feudale—from which Stair quotes, was completed in the year 1603 (five years before the author's death), although not published until 1655. According, therefore, to this authority, the instrument of sasine, or the solemnity of which that instrument was the record and attestation, did not come into common observance or use for nearly a century after the date of the charter on which the defenders found. But if actual possession was had by the disponee or vassal, in virtue of his conveyance or charter, nothing more was then needed to perfect his “right”—(Stair, sup. cit.). It is not suggested in this case that the possession by the defenders and their authors of the lands now in question was other than continuous and uninterrupted from 1572 down to, at all events, 1854. I say the lands now in question, because I am keeping quite in view what was done in 1827 with another part of the lands of Rathelpie, and shall advert to that immediately, to see whether that has any bearing upon the question before us. Accordingly the defenders' title stands thus: A charter dated in 1572, confirmed by the Crown the same year, and confirmed and ratified by Parliament in 1612, with actual possession following on the charter for more than forty years. In these circumstances, I agree with the Lord Ordinary in holding that the defenders have a competent and habile title which includes the lands in question, and which, by possession for more than the prescriptive period, has been rendered indefeasible. I shall here notice the transaction of 1827, just alluded to, because that transaction bulked somewhat considerably in the debate before us, although in my opinion it has no bearing—certainly no direct bearing—upon the question raised in this case. In 1827, on an application by the then incumbent of St Leonard's parish, the Presbytery designed for him a glebe of about 412 Scots acres. But on that designation no possession followed, either actual or civil. It is not pretended that the incumbent ever took or had natural possession of the land so designed for a glebe; but it is said that he took and had civil possession thereof through the defenders' authors, who were the tenants of the land under the incumbent, and paid rent to him as such. I think the proof shews that this was not so —there is no trace of the relationship of landlord and tenant between the incumbent and the College. What is proved is that from 1827 down to 1854 the incumbent (for the time being) received a certain payment in money, not as rent for the land, but “in lieu” of the land—and received that money, not from the College as tenant, but from the heritors who were bound to supply the glebe, or pay something in place of it. There appears to me to be nothing obscure about this transaction. The glebe had been designed, and the incumbent of the parish could have taken possession of it had he pleased. But he preferred a money payment from the heritors in place of the glebe, and of the glebe he never took possession. Had he taken possession under the decree of the Presbytery designing the glebe, it would. for himself and his successors in the cure, have become heritably theirs, But the designing of the glebe, without possession following, gave the incumbent and his successors no heritable title to it; it did not operate as a divestiture of the then vested proprietor. But even had this been otherwise—had the incumbent taken possession of the designed glebe—it would not have availed the present pursuer, at least in this action. He is not asking to have it declared that he is entitled to the glebe so designed, but to a different piece of land altogether, so that whether there was or was not an effectual designation in 1827 is immaterial to the only question raised in the present process.

If, then, the defenders have a good heritable title to the lands in question, as I think they have, what title has the pursuer to these lands on which to base the declarator he asks the Court to pronounce? His only title is the contract of excambion executed in 1854 between the defenders on the one part and Dr Cook, the then incumbent of the parish of St Leonard's, “acting in concurrence with and under approval of the Presbytery,” on the other part. This deed narrates the designation of 1827—that from that date “till now, said glebe, or an equivalent for the same, has continued to be enjoyed by the minister of said parish”—that an arrangement had been made whereby the said glebe should be excambed for another part of the lands of Rathelpie, of which the Presbytery had approved, and that in order to carry out this arrangement the parties had “agreed to grant these presents in manner underwritten.” Therefore the defenders disponed to the said Dr Cook and his successors in the incumbency of said parish, “as an arable glebe and site for manse, offices, and garden,” the pieces of land known as Cockshaugh and Toll Park—the lands referred to in the conclusions of the summons. In return or exchange Dr Cook, under authority of the Presbytery, disponed from him and his successors in the cure of the parish, to and in favour of the defenders, the 412 acres Scots designed as a glebe in 1827. This contract of excambion has never been recorded in the Register of Sasines. The effect of this deed, in so far as it purports to convey the old glebe of 1827 (I call it so for convenience) in favour of the defenders, does not need here to be considered. Nothing that can be done within the conclusions of this action can affect the defenders' title to that 412 Scots acres one way or another. But the important question arising upon the terms of this contract of excambion is, what title does it confer on the pursuer as the incumbent of St Leonard's in the lands known as Cockshaugh and Toll Park? The defenders maintain that it confers no heritable title on the pursuer, because (1) no infeftment has followed upon it, the deed never having been recorded in the Register of Sasines; (2) that no possession has followed upon it; and (3) that as the contract of excambion confers no higher than a personal title to the lands in dispute, such a title cannot compete with the heritable title which the defenders hold to the same lands. The pursuer maintains in answer that the lands conveyed by the excambion to his predecessor are kirk lands and need no infeftment to perfect his right. I am not prepared at present to assent to that view. I am disposed to think that the title conferred by the contract of excambion was no higher or other title than would have been conferred had the parties to it been all laymen, and that it required registration to make the right conveyed perfect as a heritable right. But that is a question not free from difficulty, and I will assume that the conveyance to the incumbent of the parish did not require sasine to perfect it. But possession following upon the conveyance was certainly necessary to complete the right, and this I think the pursuer and his predecessor never had. I agree with the Lord Ordinary in thinking that the lands now in dispute, although conveyed by the contract of excambion to the pursuer's predecessor, continued to be possessed by the defenders and them only. As in the case of the designation of 1827, so again after the execution of the contract of excambion, the incumbent of the parish was contented to take a money payment instead of taking possession of the land. The possession of the defenders was thus never interrupted, and for more than forty years after the excambion they exercised all the rights of ownership in said lands. The result therefore is this—the defenders have a good heritable title to the lands of Rathelpie, which include the lands now in question. Upon that title they have possessed since 1572, and certainly for more than forty years prior to the raising of this action. Their title is now indefeasible. The only title which the pursuer can shew to the lands in question is at best a personal title, which cannot compete successfully with the defenders' heritable title, and therefore the Lord Ordinary was right in sustaining the defence and assoilzieing the defenders.

It was argued for the defenders that they were entitled to take advantage (if necessary) of the shorter period of prescription introduced by the Conveyancing Act of 1874. If it was necessary to decide the question, I should not be prepared to sustain the defenders' contention. Whatever may have been the intention of the Act of 1874 its language is not ambiguous, and in terms it applies only to titles which have been recorded in the appropriate Register of Sasines, which cannot be said of the defenders' title. In this view, while affirming otherwise the interlocutor of the Lord Ordinary, I would suggest that we should delete the words “or at least for twenty years” which he has introduced.

The Lord Justice-Clerk and Lord Young concurred.

LORD MONCREIFF was absent.