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Found, that although superiors of erection, by the act 10th Parliament 1633, were not formal superiors, (having only the feu-duties, and not the other profits of the superiority) yet hospital lands, or maison-dieus, fell not under the annexation 1587, cap. 29. and that such continued superiors, as being excepted from the annexation.
Fol. Dic. v. 1. p. 531. Harcarse, (Superiority.) No 939. p. 264.*** Sir P. Home reports this case:
1682 February.—The Laird of Findourie, as having right by progress to the lands of Coldhame, from the Chaplains of Coldhame, having pursued a declarator against the Town of Brechin, for declaring his right and property of the said teinds, and that he holds the same feu of the King, who has right to the superiority by the act of annexation in the year 1587, and that the Town of Brechin had no right thereto; Answered, That the King having granted a gift of mortification to the town of Brechin, in the year 1572, for the use of the poor, of all rents, duties, annuities, tenements, and others, which formerly belonged to any chaplainry or alterage, founded within the cathedral church of Brechin, whereof the lands of Coldhame are a part, the town, as now come in place of the chaplain, has right to the superiority of these lands. Replied, That the gift of mortification cannot be sustained, because no infeftment followed upon it, and it is a certain principle in law, that nulla sasina, nulla terra, whereas the pursuers stand infeft by a right flowing from the chaplain, and confirmed by the King; and albeit the town's right could be sustained, yet they could only have right to the feu-duty, as in the case of the Lords of Erection; and albeit by the act of annexation the superiority of all kirk lands is annexed to the Crown, yet the King cannot dispose of the superiority without consent of Parliament; neither can the King, or any other superior interpose a vassal betwixt them and their vassals; and by the act of annexation in the year 1633, the superiorities of kirk lands are declared to belong to the King both before and after the annexation 1587, and that the Lords of Erection had no farther right to the superiority but to retain the feu-duties, and in an action of reduction and improbation formerly intented at the instance of the town against the pursuer, the Lords found that the town was in the case of a Lord of Erection, had no right to pursue any such action, but only an exhibition as not having right to the superiority, but only that the vassal may exhibit these rights, that it may be constant what was the feu-duty; and even as to the feu-duty the town could have right, because they had not subscribed the surrender; the privilege of retaining the feu-duties being only granted by the act of Parliament 1633 to those that should subscribe the surrender; as also the pursuer and his authors had prescribed a right by holding of the King by 6 or 7 public infeftments under the Great Seal, since the year 1583. Duplied, That this being a gift of mortification in favours of the poor, it is habili modo conveyed and established by a charter under the Great Seal, without a sasine, just as the right of the benefices of the said chaplainries and alterages might be conveyed by a right or provision without infeftment, and all gifts of the rents of any chaplainry or alterage granted to royal burghs for the use of the poor are granted after the same manner, by a gift under the Great Seal, without any infeftment; and the town of Brechin, as to this mortification, is altogether in a different case from the Lords of Erection, for the act of annexation in the year 1587, annexing the superiority of kirk-lands to the Crown, bears an express exception of all lands, profits, tenantries, annualrents, and commodities whatsoever, granted before the date thereof, by his Majesty or any of his predecessors, or by whatsoever other persons, to any hospital within the kingdom, for the use of the poor; so that the first gift of this mortification being before the act of annexation, and the second gift, which is a confirmation of the first, bearing a novodamus, being that same year, falls under the exception of the act, and consequently, likewise, does not fall under the act of Parliament 1633, annexing the superiority of kirk lands to the Crown, which declares that the King has right to the superiority of all kirk lands erected in temporal Lordships, at or before the annexation of kirk lands in the year 1587, reserving to the Lords of Erection the right to the feu-duties ay and while they be redeemed, which does not in the least concern or prejudge mortifications or poor donations, which falls under the exception contained in the act of annexation; and the pursuer could not prescribe a right holding of the King, seeing he and his predecessors were always in use to pay these feu-duties to the town. The Lords, in regard the pursuer was infeft upon the charter granted to him by the King before any infeftment in favours of the Town of Brechin, upon the gift of mortification to them, found and declared that the pursuer holds of the King, and that the Town of Brechin has only right to the feu-duties as patrons of the chaplainrie of Coldhame.
