Witnesses admitted to prove a minister's possession of lands to be by tolerance of an heritor, and not to be a glebe belonging to the kirk.
Click here to view a pdf copy of this documet : PDF Copy
The Minister of Hassendein having obtained the designation of a glebe out of the Duke's land, who alleged, That the Minister having a glebe before, extending at least to two acres, the Earl upon this designation had gotten possession thereof, and could only seek relief for the surplus. It was answered, That these two acres had never been designed as a glebe, but the pursuer's predecessors were infeft therein, and in possession thereof before the ministers, and any possession they had was but by their sufferance and connivance. It was answered, That decennalis et triennalis possessor non tenetur docere de titulo, and the Minister was not only in possession thirteen years, but thirty years. It was answered, That albeit possession may be a title, yet it may be elided by the pursuer's right, which cannot be taken away but by prescription; whereupon the question arose, how the tolerance or sufferance of the Minister's possession was probable, whether by witnesses or not, seeing tolerances are not ordinarily so proved.
The Lords found that if the Minister's possession were alleged to have been forty years, as belonging to the kirk, that the Duke's tolerance could only be proved by writ, to elide the same, but if for fewer years, they found the tolerance or sufferance probable by witnesses.
Fol. Dic. v. 2. p. 228. Stair, v. 1. p. 739.*** Gosford reports this case:
The Minister of the parish having divided a glebe of four acres of lands, on a designation, out of the Dutchess of Buccleugh's estate, the Duke and Dutchess did pursue an action of relief against the Heritors of the parish for their proportions effeiring to their respective estates. It was alleged for the Heritors, That they could not be obliged for relief of an acre and a half of the said four acres, because the Minister had been in possession of so much before the designation by the space of twenty years, the same falls into the pursuer, who, by his designation, is to possess no other four acres as his glebe, and so that acre and an half relieves the pursuer pro tanto. It was replied, That any possession the Minister had of that acre and an half was only out of sufferance and favour, because he had no glebe designed; and a naked possession, without a title, could not take away the pursuer's right of property, unless it could be alleged, that the said acre and an half was either mortified or kirk-land, in which case decennalis triennalis posesssio habetur pro titulo; whereas it is offered to be proved, that the pursuer and his predecessors were infeft in the said lands as their own property, and were in possession thereof past the memory of man before the Minister's entry thereto, which was only by sufferance, he having neither decreet nor designation. The Lords did repel the defence in respect of the reply, and sustained the relief of the whole four acres divided amongst the heritors pro rata.
