A minister of a parsonage possessing 14 acres of land, besides his glebe, for 18 years, as holden and reputed kirk-lands, was preferred in possessiorio to one who offered to prove, that they had been formerly possessed as part of his lands, past memory of man.
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The minister being provided to the parsonage of the kirk of ——, and in possession of twelve or fourteen acres of land at the said kirk, by and attaur his glebe of four acres designed, from the which he was pursued to remove by the pursuer; and the minister alleging, that he was provided to the parsonage of that kirk, whereby he had right to the whole kirk-lands thereof; likeas, he was eighteen years in possession of the twelve acres acclaimed, which are and have been reputed kirk-land, by common estimation; and the pursuer replied, that this possession whereto the minister entered, was without order of law, the time of the Lord Maxwell's forfaulture, whom this pursuer followed; and that estimation whereby the same was alleged to be kirk-lands, was only proved by two witnesses, and could not be found enough to take away the same from the pursuer, which he alleged to be his heritage bruiked by him and his predecessors, past memory of man, as a part of his lands of —, wherein he was infeft, and his predecessors; and for which lands he alleged, he and they received yearly duty, past memory of man, there being no monument extant to qualify that it was kirk-lands, neither by foundation, charter, feu, tack, or rental, nor ever possessed by any kirk-man, or ever duty paid therefor to any kirkman; likeas, the same lyes contiguous to his said lands, wherein he is infeft; and by the contrary, there is a strip betwixt the same and the minister's four acres of his glebe, whereby it appears, it has not been of before kirk-land; and he offered to prove, by an inquest of fifteen sworn gentlemen, that the same has ever been reputed land pertaining to him, and to his predecessors, and not to the kirk. This reply was rejected, and the exception admitted to probation, to the defender, in this judgment possessory.
Act. Cunningham & Lawtie.Alt. Nicolson & Mowat.Clerk, Gibson.
Fol. Dic. v. 2. p. 90. Durie, p. 494.
