Countess of Hume v. Tenants of Alcambus and Mr Rodger Hog
Date: 5 February 1667 Case No. No 2.
Though mills are distinct tenements and not carried as part and pertinent; yet in a barony, which is nomen universitatis, mills though not expressed are comprehended.
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The Countess of Hume being provided, by her contract of marriage, to the lands of Alcambus, Pyperlaw, and Windilaw, extended to twenty-four husband-lands, she gets a charter upon her contract, bearing, for implement thereof, to dispone to her the lands and barony of Alcambus, &c. with a sasine taken at Alcambus. She thereupon pursues the tenants. Compearance is made for Mr Roger Hog, and other creditors, who bought these lands from Wauchtoun, who had bought them from the Earl of Hume, and alleged absolvitor from the mails and duties of the mill of Alcambus, because my Lady by her contract of marriage was not provided to the mill, neither was she infeft therein, per expressum, and mills do not pass as pertinents, without special infeftment; 2do, Absolvitor for the rents of Pyperlaw and Windilaw, because my Lady's sasine, bears only infeftment in the lands of Alcambus, and mentions not these lands which are particularly in the contract. The pursuer answered to the first, That by her charter, she was infeft in the lands of Alcambus, with the mills, with other lands mentioned therein, &c.; 2dly, That Alcambus bore, by her charter, to be a barony, which is nomem universitatis, and carries mills, albeit not exprest. To the second, It is offered to be proven, that Alcambus is the common known designation, and is commonly known to comprehend Pyperlaw and Windilaw, as parts and pertinents thereof, and that they are all holden of one superior, and lie contigue, so that they are naturally united, and without any further union in a barony or tenement, and a sasine upon any place of them serves for all. It was answered for the defender, to the first point, Alcambus was not a barony, neither doth the designation thereof by the Earl of Hume, make it a barony, unless it were instructed. 2dly, The adding of mills in the charter, if the Lady had not right thereto by the contract, is a donation by a husband, and is revocked by his disposition of the lands of Alcambus, and mill thereof, to the Laird of Wauchtoun, the defender's author. The pursuer answered, that the charter was but an explication of the meaning of the parties, that by the contract the intention was to dispone the mill, especially, seeing the mill hath no sucken but these husband-lands of Alcambus, which are disponed without any restriction of the multure, so that the mill would be of little consequence without the thirle.
The Lords having compared the contract and charter, found that, by the contract, the Lady could not have right to the mill, albeit she would be free of the multures; and found that the charter did not only bear for implement of the contract, but also for love and favour; and so found the adjection of the mill to be a donation revocked; nor had they respect to the designation of the lands as a barony, but they found it relevant, if the Lady should prove that it was a barony, to carry the right of the mill, or that in my Lords infeftments, there was no express mention of the mill, but that my Lady had them in the same terms my Lord had them; they found also, that reply relevant, that Alcambus was the name of the whole lands, to extend the sasine to the lands of Pyperlaw and Windilaw, though not named, and that they might be yet parts and pertinents of the tenement, under one common name.
