Where a titular disponed to an heritor his whole thing's, enumerating particular farms, having mentioued one not belonging to the heritor, this was held to be by mistake.
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The Earl of Errol having right to the teinds of the parish of Turreff, dispones the teinds of the barony of Balquholly to Sir George Mouat heritor thereof; and in the disposition, and the dispositive words, the barony of Balquholly is set down, but with this addition, Comprehending the particular rooms, &c. therein enumerate: And amongst the rooms there is set down the teinds of the lands of Bomelly, which lands did never belong to Sir George; and, notwithstanding of the disposition, the teinds of Bomelly were still possessed by the heritor, the Earl, and the lands have been possessed by Sir John Urquhart and his predecessors these 100 or 80 years: Whereupon the Earl pursues a declarator against Sir George and Magnus Mouat, to whom he had disponed the foresaid barony, with the teinds mentioned in the foresaid right, to hear and see it found, that the teinds of the barony only were disponed, and that Bomelly being only by error fakely designed as a part of the barony, whereof it was no part, that therefore the teinds of Bomelly ought no ways to be holden as disponed by the Earl. It was alleged by the said Magnus, That he having acquired the teinds bona fide from Sir George, he ought to enjoy them according to the designation and enumeration. It was answered, That falsa designatio nihil operatur; and the subject-matter assigned being only the teinds of the barony, the word comprehending is only exegetic and demonstrative; which demonstration being clearly erroneous, contrary to the meaning of the bargain, it cannot prejudge the disponer. Likeas, it was offered to be proved by the communers that made the bargain, that no more was communed upon but the teinds of the barony, being Sir George's own lands; for if the particular enumeration had not fully comprehended the whole rooms, but that some one had been omitted, yet, if the subject-matter had been clear, of the teinds of the whole barony in question, Sir George could not have been prejudged; even so when a room is erroneously designed quia plus valet quod agitur, quam quod per errorem concipitur. And to evidence it was but a clear error, Sir George was never in possession, nor did he ever claim the teinds, though the disposition was made anno 1656.
The Lords repelled the allegeance, in respect of the libel and reply.
