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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wallace v University Court of St Andrews  ScotCS CSIH_2 (20 July 1904)
Cite as: (1904) 6 F 1093,  ScotCS CSIH_2, (1904) 12 SLT 240
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20 July 1904
|University Court of St Andrews.|
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 4
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 4
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.
LORD MONCREIFF was absent.
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