Barklay v. The Provost and Masters of the College of St Andrew's
1684.
February. Case No. No 201.
Found that a right, null because not subscribed by the major part of the regents of a college, could not give a minister the benefit of decennales et triennales possessio, which is only a presumptive title.
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Mr William Barklay minister at Forteviot having pursued the Provost and old Masters of the College of St Andrew's, titulars of the teinds of the parish, for payment of L. 40 Scots yearly, for several years bypast, which was granted to him by the former Provost and Master of the College for augmentation of his stipend; alleged for the defenders, That the pursuer being completely provided, conform to the act of Parliament, having eight chalders of victual, and 100 merks of money, the former Provost and Masters, being only administrators of the College rents, could not warrantably give any augmentation to the minister, that being a deliquidation and alienation of the College rents. Answered, That the pursuer and his predecessors having been above 18 years in possession of the said L. 40 out of these teinds, it is a principle in the common law, that decennalis et triennalis possessio in ecclesiasticis babetur pro titulo, and gives him a right to the same without being obliged to produce any other right; much more ought it to maintain him in judicio possessorio, as was decided the 25th November 1665, Mr James Peter against John Mitchelson, No 35. p. 10640. and the cause of Mr Alexander Fergusson against Alexander Agnew, (See Appendix); and there being free teinds of the parish, and the defenders being titulars of these teinds, if the memorialist had pursued them before the Commission of the Kilk, he would have gotten an augmentation; and the foresaid L. 40 was granted to him in place of the augmentation which he would have gotten if he had raised a pursuit against the defenders before the Commission. Replied, That the rule in law is, that decennalis et triennalis possessio, gives the beneficed person only a presumptive title, and secures him in the possession, unless that another person instruct a better and more preferable right, as was decided the 24th February 1681, Dr Leslie against the Minister of Glenmuck, supra, where the Lords found, that 13 years possession of viccarage by a minister, did not give him right to the teinds in prejudice of the tacksman, seeing the minister's decreet of locality doth not carry the viccarage teinds; and the defenders are in a much stronger case, they not having right to the teinds by the tack, but by several acts of Parliament of King James IV and King James VI.; and the right granted to the pursuer of the said L. 40 is only by Mr James Wood and Dr Burnet, two of the seven Masters of the College, without consent of the rest; and the defenders have raised a reduction of the pursuer's right, which they now repeat; and when he shall pursue for an augmentation before the Commission, he shall have an augmentation. But albeit the right had been granted by all the Masters, yet it could not prejudge the College; much less when the same is only granted by two, without consent of the rest. The Lords found, That the right granted to the pursuer's predecessors was null, in respect it was not subscribed by the major part of the Regents and Masters of the College; and that the right being null, could not give the pursuer the benefit of decennalis et triennalis possessio.
Fol. Dic. v. 2. p. 114. Sir P. Home, MS. No 568.
*** Harcarse's report of this case is No 32. p. 7957. voce Kirk Patrimony.
