Mr Andrew Chatto, Minister of Morbottle and Mow, and the Patron, v. Moir of Otterburn
Date: 25 June 1745 Case No. No. 61.
Infeftment in teinds necessary for prescription.
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Every man who alleges a right to his own teinds must shew that his author had a right, unless he can plead prescription; and though teinds may be conveyed, and, before the Reformation, could not otherwise be conveyed than by tack, or other personal right, yet, when the question is of prescription, it is not pleadable without infeftment. For although, in one case, ——— contra Lord Tilli-coultry, No. p. prescription was sustained upon an infeftment in the lands following on a disposition to the lands and teinds, without any infeftment in the teinds, yet that was agreed to be a judgment contrary to law.
Kilkerran, No. 6. p. 553.*** D. Falconer reports this case :
Mr. Andrew Chatto, Parson of Morbottle, pursued his heritors in a process of valuation, modification, and locality, in which Thomas Moir of Otterburn contended he had an heritable right to the teinds of part of his lands, and produced a disposition, anno 1672, to his predecessor's author of the lands with the teinds, and alleged possession had constantly been had thereon.
Pleaded for the pursuer: That Otterburn's right stood upon an apprising of the lands, with all tacks and other rights of and concerning the teinds, which could carry no further right than was in the debtor; and the defender had been always in use to pay £.5 Scots to the Minister for this piece of land, which payment might have taken its rise from a tack, and was an evidence the heritor had no heritable right; besides, the lands lying in a parsonage, the teinds thereof were not alienable till the year 1693.
With regard to the prescription, infeftment having been taken in the lands upon the disposition, there was to this day no infeftment in the teinds, and, without this, there could be no prescription, the statute extending to rights of teinds; Stair, Tit. Prescription, p. 357. (364.); and these cases, anno 1738, The Minister of Roxburgh against Fairningtoun, and 1730, Sir William Nicolson of Glenbervy against The Viscount of Arbuthnot; see Appendix.
Pleaded for the defender: The argument might proceed with some more colour, if the parish were shown to have been in a parsonage before the Reformation; but in some cases of parishes that were no parsonages, the incumbents got into possession of the whole teinds, and so they became such. There is no other evidence of this being a parsonage than a tack, anno 1610, by the Parson of hie teinds, for 300 merks; which, though a pretty good evidence of his being then a Parson, at the same time shews, by the smallness of the rent, that great part of the teinds did not belong to him; for, even in parsonages, some of the heritors might have heritable rights, as is plainly supposed by the act 1693, giving the right to the patrons, without prejudice to all other rights formerly competent to them: And there is produced an excerpt from the cess-book of the parish of Morbottle, stating the value of the lands and teinds, and, from it, it appears that great part of the teinds belonged to the heritors.
To make a real right to teinds, there is no occasion for infeftment; and so, were it necessary, the positive prescription might be pleaded upon the disposition.
Pleaded for the pursuer: The parish appears to have been a parsonage as early as 1610, and cannot be doubted to have been properly one; and if the defender could be allowed to plead from all possible cases of heritable rights in parsonages, and suppose some such to have happened here, it would cut off all arguing front the nature of a benefice whatever.
The sum of 300 merks was a considerable rent at that time, when the granters of such tacks got grassums; and the excerpt insisted on is from a loose schedule, and only tends to shew that several persons had rights to teinds which were valued, but these rights might have been tacks.
The reservation in the statute, in favour of patrons, of all former rights, must be understood of tacks which they were in use to take in their own favour by interposed parties.
The Lords Commissioners found, That Otterburn had not instructed any heritable right to his teinds.
Act. Ch. Binning.Alt. H. Home.Lord Reporter, Dun.
D. Falconer, p. 109.
