Scottish Court of Session Decisions

Subject_1 PATRONAGE.

Urquhart
v.
Officers of State

1752, Feb. 27.
Case No. No. 5.

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Meldrum as purchaser at the sale before us of the estate of Cromarty belonging to Sir George M'Kenzie, son of Sir Kenneth, produced a charter from the Crown in 15S8 in favour of Sir William Keith, erecting 18 or 19 kirks that had been common kirks of the Chapter of Ross into so many parsonages, and giving the patronage of them to Sir William- Keith, and a ratification in Parliament in 1592 with a connected progress of the whole to Sir Robert Innes of Innes, from him to Earl of Cromarty, from whom Sir George M'Kenzie had right to this one. On the other hand there was produced for the Crown, a contract betwixt the Treasurer for the Crown, the Bishop of Ross, and Sit Robert Innes. conveying these patronages to the Bishop, with a charter under the Great Seal in favour of the Bishop in 1637, but no sasine on it, and a presentation to the kirk in 1678 by the Bishop, and it was alleged that neither Bishops nor Chapters were abolished in 1588 nor before 1592, and therefore the grant to Sir William Keith was ab initio void and null; and notwithstanding ratification, the act salvo jure saved the Chapters right. 2dly, That supposing the right good at the first, it was rescinded by the act& 1606 and 1617, the first restoring Bishops, and the other their Chapters, and the exception in the act 1617 granted to laic Patrons by the King with consent of titulars for the time cannot avail the pursuer, because it was without the consent of the Bishop and Chapter, who were the titulars for the time. 3dly, Sir Robert Innes was in 1636 denuded to the Bishcfp by a charter of resignation, and he was in possession as appears by the presentation in 1678; and patronages are Jura incorporalia, and may be transmitted without sasine. Answered, The abolishing of Popery abolished all the Chapters and thereby the common kirks became patronate, and the King disposed of the patronages, whereas a common kirk cannot possibly be patronate, becanse it belongs in common to all the members of the Chapter, which cannot die, though any particular prebend may be patronate, which appears from the act 1594 touching Common kirks, which does not make them but supposes them then patronate, and is confirmed by Sir George M'Kenzie^s authority in point in his observations on the act. 4thly, It is confirmed by the very acts 1606 and 1617 in the difference made between mensal and common kirks; and the exception in the act 1617 requiring the consent of the titulars is in consequence of the act 1693; and the titulars meant were not the Chapter because there could be no patronage of common kirks while they remained common, but the titulars meant are the Ministers serving the cure, and who had right to the benefice. 5thly, That the very contract 1036 depended on the validity of Sir William Keith's right, for if it was void he could convey no patronage to the Bishop, and the kirk would still remain common and belong to the Chapter;—and answered to the defence on the contract, that though a patronage may be created or conveyed by grant without infeftment, yet when it is incorporated into a barony, as this was into the barony of Delney by the charter 1588, and all the subsequent charters, and made a feudal right having a superior and vassal, it cannot thereafter be conveyed without sasine, and may be in non-entry as other feudal rights, in the same way as heritable Bailiaries, whereof the Church-Bailiaries are a known example. Replied, It appears by the Tarbat charter in 1656 that Sir Robert Innes** warrandice was qualified in his disposition, so as not to incur double warrandice by the contract in 1636 with the Bishop of Ross. Dtiplied, However such personal clauses might affect Earl of Cromarty's heirs, yet it cannot affect a singular successor, who bona fide purchases on the faith of the records at a judicial sale in this Court. The Lords preferred the right of the pursuer. But, 28th February, a reclaiming petition was presented bringing over again all the former arguments, but concluding with one sufficient for all. vi& that they had found in the record of sasifies for Inverness-shire Bishop of Host's sasine in these patronages dated September 1687. 26th June, Remitted to the Ordinary to hear the objection to the disposition to the Bishop and to the sasine. Refused the petition and adhered as to the other point (See No. 7.)