(1730) 1 Paton 39
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Subject_Title to Pursue. —
A presbytery may pursue in the name of a kirk-session within their bounds, upon a grant made to that kirk-session for charitable uses.
Subject_Prescription.—Act 1617, c. 12.—
Possession during forty years without a title not sufficient, in order to plead the negative prescription.
[Fol. Dict. ii. p. 98. Mor. Dict. p. 10723.]
James VI. made a grant to “the poor of Perth” of all lands, tenements, &c. which had belonged to the religious houses within that burgh, and by the charter the rents and yearly income of the same are appointed to be received by a collector, or
After the lapse of some time, the purposes of the grant were neglected, and during upwards of forty years two of the subjects contained in it, (called Friars Land and Charter House,) had been possessed by the Magistrates and Town Council of Perth, and the income arising from them applied exclusively to the use of the burgh. Under these circumstances, an action of reduction, improbation, declarator, and count and reckoning, was brought by the presbytery of Perth, in their own name, and in that of the kirk-session of the burgh, against the Magistrates and Town Council, the purpose of which was to compel production of their title deeds, if they had any; and to have the same reduced; to have it declared, that the pursuers had the only undoubted right to the lands; and to make the magistrates accountable for the rents and profits unduly received by them.
July 12, 1728.
The kirk-session disclaimed the suit; upon which it was pleaded by the defenders that the presbytery had no right to insist in name of the kirk-session, by whom alone the action could be competently brought. The Lord Ordinary reported this plea to the whole Lords, who, of this date found, “That the ministers and elders of Perth cannot disclaim
This interlocutor was reclaimed against by the minister and elders, and their petition refused, of this date, by an interlocutor finding, “That the presbytery might carry on the process in the name of the said ministers;” and remitting to the Lord Ordinary to hear parties upon the other points of the libel.
Nov. 21, Dec. 24.
It was next objected by the defenders, that the declarator was barred by their possession during more than forty years, the pursuers’ right to the lands being lost non utendo. It was answered by the pursuers, that their right could not be held to be prescribed, in a question with the Magistrates, who never had any title whatever to the lands. The Lord Ordinary “repelled the allegeance of prescription in respect of the answer, and found that the lands and others libelled do pertain and belong to the hospital of Perth;” and by another interlocutor he sustained the action of mails and duties, allowing a proof of the possession and of the yearly rents, &c. These judgments were brought before the whole Court upon a petition and answers, and, after a hearing in presence, were adhered to.
Feb. 5, 1729.
Thereafter the Magistrates produced as their title, a charter granted to the town by Robert II. of “Totum et integrum burgum de Perth, cum omnibus aliis et singulis libertatibus, asiamentis et justis pertinentiis quibuscunque ad dictum
And it was further maintained, that the charter, &c. upon which the pursuers claimed, were voided by the act of Parliament (1592), whereby all grants by the crown of lands which had belonged to the religious houses were revoked. It was answered, first, That the lands in question could not be included in the charter by Rob. II. produced, seeing that they had been the property of the friars long after the date of that charter. Secondly, That the ratification by Parliament of the king's grant is posterior to, and contains an express exemption from the act of revocation passed the same year. The Lords “adhered to the Lord Ordinary's interlocutor, and refused the desire of the bill.”
Entered Feb. 24.
The appeal was brought from the interlocutors of the 12th, 23d, and 25th July, the 21st Nov. the 24th Dec. 1728, and 14th Jan. and 5th Feb. 1729.
Pleaded for the Appellants:—1. None can sue any action upon a real right, but such as are vested with the property, and by the grants founded on, the ministers and elders of the burgh of Perth are the grantees in trust, and they have disclaimed this action.
2. Supposing the presbytery to be entitled to pursue, yet the action is now barred by the act 1617, c. 12, the burgh of Perth having been in possession of the subjects for upwards of forty years without interruption.
3. Supposing the action to be still competent, the appellants have produced title-deeds prior to their possession.
4. At all events, the appellants are exonered by
Pleaded for the Respondents:—1. The trustees are, by the tenour of the grant, made accountable to the superintendent; and by act of Parliament the bishop and ordinaries have the control of pious donations within their bounds. All offices in the church of Scotland superior to that of a presbytery being abolished, the presbyteries are come in place of the bishops and superintendents.
2. Actions prescribe by the act 1617, only where the possession for forty years has been upon a charter and seisin, or, in the case of an heir, upon a continued tract of seisins flowing upon retours or precepts of clare constat.
3. The appellants produce no title. The lands in question are not included in the charter of Rob. II. founded on, because at its date, and until the Reformation, they belonged to the Charter-house in Perth.
4. The appellants, having possessed without any title, are liable for all bygone rents and profits.
Judgment March 6, 1730.
After hearing counsel, “it is ordered and adjudged, &c. that the appeal be dismissed; and that the several interlocutors therein complained of be, and the same are hereby affirmed.”
Counsel: For the Appellants,
For the Respondents, P. Yorke, Ch. Areskine, Ja. Graham.