Alexander Colville, and Others, v. The Reverend David Balfour
Date: 21 November 1798 Case No. No. 91.
Lands exempted from payment of stipend, upon production of a charter in 1565, by which they were conveyed cum decimis inclusis, et nunquam antea separatis; but found not entitled to exemption on a charter in 1584, by which the lands were conveyed simply cum decimis inclusis.
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The report of the Sub-commissioners of the parishes of Torryburn and Crombie bears, that Robert Colville “producit an charter grantit to his predecessors and him of the lands of Crombie, cum dicimis inclusis, daittet the 11th day of November,
15165 zeairs; and sicklyk producit an charter grantit to his predecessors and him, cum decimis inclusis, of the lands of Cultes, daittet the 29th day of October, 1557, confirmed by his Matie the penult day of January, 1567.”
In an action for approbation of this report, which the proprietors of Crombie and Cults founded on as exempting them from payment of stipend, the oldest title produced with regard to Crombie was a Crown charter, in 1565, confirming a charter granted by the Commendator and Convent of the Monastery of Culross, in 1560, which conveyed the lands, “et decimas ad rectoriam, earundem terrarum spectan. inclusas, cum, universis et singulis suis pertinentiis; quæquid. decimæ ad rectoriam prædictarum, ut præmittitur, spectan. nunquam antehac divisum a stipite et trunco separatim cuidam personæ, in assedatione concedebantur aut locabantur.”
The oldest title produced as to Cults, was a charter from the same monastery, in 1584, disponing the lands “decimis, tam vicariis quam rectoriis, earundem inclusis.”
On advising memorials, the Court (7th March, 1798,) “found there is no sufficient evidence produced that the lands of Cults” are “held cum decimis inclusis et nunquam antea a trunco separatis;” and approved of the report quoad ultra.
In a petition against this interlocutor, the proprietor of Cults pleaded, That the notion, that those lands only are entitled to exemption from payment of stipend, as being held cum decimis inclusis, where the stock and teinds were feued out together by churchmen before the Lateran Councils, is now exploded: That a charter prior to the act 1587, C. 29. is of itself sufficient; and the expression, nunquam antea separatæ, or the like, is superfluous; 28th January, 1675, Minister of Tulliallan against Colvill, Sect. 2. h. t.
Answered: To give the exemption claimed, the stock and teinds must not only have been feued out together before the act 1587, but the oldest title produced must bear evidence that they were at no time held as separate subjects. In the present case, both parcels of lands were feued by the same monastery; and the difference of expression used in the two charters shews, that the lands were then understood to be in different situations.
The Lords almost unanimously adhered.
Act. Geo. Fergusson, Ar. Campbell.Alt. J. W. Murray.
Fac. Coll. No. 93. p. 213.
