Grizel Peden v. The Magistrates and Town Council of Paisley
Date: 21 November 1770 Case No. No 23.
Seat in the church, not expressly conveyed, goes as part and pertinent of the landed estate.
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The estate of Cochrane of Fergusslie being brought to a judicial sale, the country estate, lying within the barony parish of Paisley, was purchased by the Magistrates, and a tenement and garden in the town by Bethia Cochrane. There was also a seat in the church which belonged to Fergusslie, but of which no mention was made in the decreet of sale, or in any of the rights granted to either of the purchasers. Mrs Cochrane, the purchaser of the house and tenement, had made use of the seat for several years; and having, in 1765, conveyed these subjects to Grizel Peden, she claimed the seat in the church as part and pertinent of her property. She was opposed by the Magistrates of Paisley; and the Sheriff ‘found, that the pursuer, as disponee of Mrs Bethia Cochrane to a house in the town of Paisley, has no right to the seat in the church libelled.’
Mrs Peden advocated the cause; but the Lord Ordinary remitted the same to the Sheriff simpliciter.
In a reclaiming petition, she maintained, That as the rights of neither party expressly conveyed this subject, it would pass as part and pertinent of her property; that it was such, was ascertained and explained by the possession. And in support of her argument, she referred to Fountainhall, 15th January 1697, 18th November 1698, Lithgow contra Wilkieson, No 16. p. 9637.
The Magistrates answered; That the seat in the church, like the burial-place or other appendages, fell naturally to be considered as a part and pertinent of the landed estate lying within the parish, and not of a town house in the burgh of Paisley, which was not said to be the mansion house, or to have any connection whatever with the landed property. The case mentioned from Fountainhall was adverse to the pursuer's plea; as the lands and mansion house had been separated, and the seat in the church conveyed with the house per expressum.
The Lords unanimously adhered.
Lord Ordinary, Kennet.For Peden, B. Hepburn.For the Magistrates of Paisley, Ilay Campbell.Clerk, Campbell.
Fac. Col. No 49. p. 139.
