What Title requisite in the Positive Prescription.
Subject_3 SECT. V.
Title requisite in the Prescription of Right to Teinds and Rights granted by Ecclesiastics.
John Straton of Lauriston v. the New College of St Andrews
Date: 25 February 1756 Case No. No 101.
A clause cum decimis in a charter of adjudication, though repeated in subsequent charters, was found not to give right to the teinds by the positive prescription, in the person of him who continued to take leases of the teinds from the Crown, the former titular.
Click here to view a pdf copy of this documet : PDF Copy
The lands of Lauriston lie in the parish of Marytoun. The teinds belonged the bishopric of Brechin until the abolition of episcopacy in the 1690, when they became vested in the Crown. The lands belonged to the Earl of Middleton, and were apprised from him in the 1670. On this apprising Colonel Charles Straton obtained a charter in the 1695, wherein a clause cum decimis tam rectoriis quam vicariis is contained; which clause is repeated in all the subsequent charters. In the 1721, Colonel Straton obtained from the Crown a lease of the teinds of Lauriston; which lease was renewed in 1740, and is still current. In a process of augmentation, modification, and locality, raised by the minister of Marytoun, the question occurred, Whether the teinds of Lauriston, were to be considered as belonging heritably to Straton, or as possessed under lease.
Straton of Lauriston pleaded, That the teinds were heritably conveyed to his predecessor by charter from the Crown, and have been transmitted in all subsequent charters, during a space much longer than is required by the act 1617. Neither can the leases of the teinds, which have been inadvertantly taken, vacate this heritable right, or imply a dereliction thereof; the teinds therefore must be held as belonging heritably to Straton, and the augmentation localled accordingly.
Answered for the New College of St Andrews, as having right to other teinds in the parish of Marytoun: The question is not, whether an heritable right already established to the teinds of Lauriston has been vacated or delinguished? but, whether such heritable right has ever been constituted in the person of the proprietor of Lauriston? The act 1617 requires not only heritable infeftments, but also continued possession for forty years; now, Straton and his authors have not possessed the teinds as heritors, but as tenants by lease from the Crown. The consequence of the argument used by Straton would be, that if an heritor can once procure a clause cum decimis to be inserted in his charter and sasin, he may continue to take leases of the teinds from the crown, and after the expiry of forty years, may plead an heritable right to the teinds by positive prescription, notwithstanding his possession as tenant.
“The Lords Commissioners found, That Mr Straton had no sufficient heritable tight to the teinds of Lauriston.”
Act. A. Wedderburn et Fergusson.Alt. Sir Dav. Dalrymple.Reporter Shewalton.
Fac. Col. No 190. p. 283.
