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Page: 296↓

Horne

v.

M. of Breadalbane's Trustees No. 99.

Court of Session

2d Division

Jan. 23 1835

Ld. Mackenzie F, Lord Justice-Clerk, Lord Mackenzie, Lord Glenlee, Lords President, Balgray, Gillies, Mackenzie, Corehouse, Moncreiff, Fullerton, and Jeffrey.

William Horne, Pursuer.— Keay— Walker. Marquis of Breadalbane's Trustees, Defenders.— Skene— Outram. Right Hon. Sir John Sinclair, Defender.— D. F. Hope— More.

Subject_Teinds—Warrandice—Prescription,—

1. A party whose predecessor had accepted a conveyance under burden of implementing all contracts of his author in reference to certain lands, held liable to be pursued by the person in right of the obligation in one of these contracts. 2. Augmentation of stipend having been imposed by repeated interim decrees of locality beyond the amount warranted against, and having been paid without any demand of relief for more than forty years—held, that the obligation of warrandice had not itself prescribed, but that the claim of relief for all augmentations granted beyond the forty years had so prescribed, though no final scheme of locality had been approved of.

In 1675, a contract of wadset was entered into between John Earl of Breadalbane and Francis Sinclair of Stirkoke, whereby the lands of Sybsterwick, Wedderclett, and Hauster, with the teinds thereof, were disponed in wadset by Lord Breadalbane to Sinclair, in security of the sum of 20,245 merks. In this contract, Lord Breadalbane warranted the lands free of all burdens, ministers' stipends, and augmentations, under the exception “of the public burdens actually payable from the saids lands and teinds at the time;” and for the purpose of ascertaining the share effeiring to the lands so disponed of the cumulo burdens payable for the whole of Lord Breadalbane's lands in the parish, he bound himself “to procure and obtain a valuation of the lands and others above written, with their pertinents hereby wadset as aforesaid, to the effect, that being so valued, the same may bear but an equal share of the said public burdens proportionally with the rest of the lands within the parochin of Wick, and no more, but conform to the real rents and valuations of the same.”

In 1715, John Lord Glenorchy, as having right by disposition and assignation from his father, the Earl of Breadalbane, entered into a contract of sale with Sinclair of Stirkoke, whereby, in consideration of the additional sum of 8800 merks, set forth as being, with the amount for which the lands had been wadset, the full worth and value of the irredeemable right of property thereof, his Lordship discharged and renounced his right of reversion; and, further, sold and disponed the lands and teinds themselves, “in corroboration of the foresaid contract of wadset.” This contract and disposition, after taking Sinclair bound to pay certain proportions of the ward, nonentry, and relief duties of the baronies of Acker–gill and Berridale, and earldom of Caithness, whereof the lands in question formed parts, proceeded thus: “And, in like manner, paying yearly for the teinds of the said lands of Sybsterwick, and pertinents thereof, to the minister serving the cure at the parish of Wick, present and to come, of the sum of £29, 2s. 8d. Scots money, and two bolls of victual, and for the teinds of the said lands of Wedderclett and Hauster, of the sum of £8, 6s, 8d. of money foresaid, and two bolls of victual to the said minister of the parish of Wick, present and to come, and relieving the said John Lord Glenorchy, and his foresaids, at their hands thereof yearly, as their proportional part of the stipend now agreed upon to be paid yearly to the said minister and his successors, for the teinds of the said haill lands hereby disponed, in all time coming, and that in part payment of the stipend payable by the said John Lord Glenorchy to him and his successors, out of his Lordship's interest in the said parish pro tanto, beginning the first term's payment of the said money stipend at the aforesaid term of Martinmas next, 1715 years, for that year's crop, and of the victual stipend for the said crop, betwixt Yule and Candlemas thereafter, and so forth, yearly and termly thereafter, in all time coming; and these for all other duty, customs, secular services, exactions, or demand, that can be any ways asked or craved of and from the said Francis Sinclair or his foresaids, out of the said lands and teinds, any manner of way, in time coming.” The contract further contained the following clause of warandice: “The said John Lord Glenorchy binds and obliges himself, his heirs and successors, to warrant, acquit, and defend this present right and disposition, charters, resignations, and infeftments to follow hereupon, and haill lands and others above disponed, with the pertinents, together with the teind-sheaves and parsonage teinds of the said haill lands, to be good, valid, and sufficient, free, safe, and sure to the said Francis Sinclair, and his foresaids, heritably and irredeemably, as said is, from all and sundry wards, &c., and to warrant, free, and relieve the said Francis Sinclair and his foresaids of and from all future augmentations of ministers' stipends and burdens upon the teinds of the said haill lands, whether by augmentations, new erection of parishes, and additional stipends, and that as well of all terms and years bygone as in all time coming, and from all perils, dangers, incumbrances, and grounds of eviction whatsoever, as well not named as named, bygone, present, or to come, which may anywise stop, hinder, or impede the said Francis Sinclair or his foresaids in the peaceable possession, bruicking and enjoying of the said haill lands and pertinents thereof above disponed, and teinds of the same, and intromissions with, uplifting and receiving of the rents, maills, profits, and duties thereof, in all time coming, at all hands, and against all deadly, and without any hurt, prejudice, or derogation to the absolute warrandice contained in the said wadset right above narrated.” On the other hand, Sinclair bound himself, his heirs and successors, “by their acceptance hereof, to free, relieve, and disburden the said John Lord Glenorchy and his foresaids, not only of the cess, taxations, ministers’ and schoolmasters’ stipends, and other public burdens imposed upon the said lands and teinds above disponed, and due and payable by them, by the aforesaid wadset right, of all years and terms bygone, since the time of their entry to the possession of the said lands and teinds, by virtue or the aforesaid wadset right, but also of all cess, taxations, horse and foot levies, schoolmasters' stipends, and other public burdens and impositions whatever, imposed or to be imposed upon the said lands in all time coming; and, in like manner, of the proportions of stipend money and victual above specified, now conditioned and agreed upon to be paid by him and his foresaids, by this present right, to the minister serving the cure at the said parish kirk, and his successors, also at and from the term of Martinmas next to come, and yearly thereafter, and for ever, in all time coming, at the terms and in the manner above mentioned.”

In 1719, Lord Glenorchy, then Earl of Breadalbane, sold and disponed to John Sinclair of Ulbster, predecessor of the defender, Sir John Sinclair, sundry lands, baronies, and teinds belonging to the earldom of Caithness, by a disposition which specified, among the lands conveyed, those of Sybsterwick, Wedderclett, and Hauster, previously disponed to Sinclair of Stirkoke, but “with and under the burden of all bargains and sales made by our said umquhile father (the Earl of Breadalbane) or us, of any part or portion of the said lands, teinds, or others, particularly and generally above disponed, or tacks of any of the said lands or obligements therein contained, before the said 7th day of January, 1719 years, which the said John Sinclair, by his acceptance hereof, binds and obliges him, his heirs and successors whomsoever, to ratify, approve, and implement in the haill heads, tenor, and contents thereof, in so far as we or our said umquhile father are bound thereby, and never to quarrel or impugn the same upon any account whatsoever, that will afford ground of eviction or recourse against us or our foresaids.”

In 1717, Sinclair of Stirkoke had disponed the lands and teinds of Sybsterwick to Sinclair of Barrock, by a disposition which took the former bound to relieve the latter of all future augmentations of stipend, but contained no express assignation of the clause of warrandice in the contract of sale with Lord Glenorchy in 1715. In the assignation of writs, however, there was specially assigned that contract, but “allenarly in so far as they may concern to be extended to the said John Sinclair and his foresaids, their security of the lands, teinds, and others hereby conveyed, and haill parts, pendicles, privileges, and pertinents thereof hereby disponed, and no furder.”

These lands of Sybsterwick, so conveyed to Sinclair of Barrock, came by regular process to be vested in the pursuer Horne. As to the other lands also of Wedderclett and Hauster, the procuratory of resignation in the contract 1715 having been adjudged by Sinclair of Barrock, an instrument of resignation was executed thereupon in 1750, and a charter of adjudication and resignation expede, on which he was infeft. Thereafter, he conveyed the lands to trustees, with a general assignation to all contracts and writs, and all titles, rights, and securities, with the whole clauses of warrandice relating to the lands disponed, but without specially mentioning the contract 1715, and these trustees, in 1797, sold them to the pursuer's father, conveying them with a general assignation to all writs and evidents, and the whole clauses of warrandice thereof. In the mean while, augmentations of stipend had been obtained by the ministers of Wick in the years 1719, 1793, 1807, arid 1823. These were localled by interim-decrees of locality, the schemes in which had never been approved as final. By each of these interim localities, a share of the augmented stipend was laid on the proprietors of the lands of Sybsterwick, Wedderclett, and Hauster, beyond the amount specified in the contract 1715; but no demand for relief was ever made against the representatives of Lord Glenorchy or of Sinclair of Ulbster, till shortly before the raising of the present action. In this action, instituted in 1828, the pursuer, Horne, as proprietor of these lands, and as in right of the clause of warrandice in the contract 1715, concluded to have it declared that the late Marquis of Breadalbane, as representing Lord Glenorchy, and Sir John Sinclair, as representing Sinclair of Ulbster, or one or other of them, were “bound and obliged, in terms of the conditions and provisions of the foresaid contract of sale betwixt John Lord Glenorchy and Francis Sinclair of Stirkoke, and of the said disposition in 1719, granted by the said John Lord Glenorchy in favour of John Sinclair of Ulbster, to free and relieve the pursuer, and his said lands and teinds of Sybsterwick, of all payments of stipend beyond the said stipulated amounts of £29, 2s. 8d. Scots money, and two bolls of victual, and the pursuer and his said lands and teinds of Wedderclett and Hauster, of all payments of stipend beyond the said stipulated amounts of £8, 6s. 8d. Scots money, and two bolls of victual in all time coming;” and to have them ordained to make payment of the whole sums which he or his authors had paid over and above the amount of stipend above mentioned.

In defence, the Marquis and Sir John Sinclair pleaded—

1. The clause of warrandice in the contract 1715 has not been transmitted to Home, so that he has no title to found on it.

2. The right of warrandice itself has been lost by the negative prescription, in consequence of no action of relief having been intented for greatly more than forty years after the obligation of warrandice had been incurred, and the ground of action had arisen by the first augmentation it. and,

3. At all events, all claim of relief had prescribed, in respect to those augmentations granted and localled upon the pursuer's authors more than forty years before the action was raised.

Sir John Sinclair also pleaded separately, that the pursuer had no connexion with the contract of sale between Lord Breadalbane and Sinclair of Ulbster, in 1719, and so could not found on the clause therein contained; and he maintained certain other pleas on the merits of the question as to his liability, to which it is unnecessary at present to advert.

In answer, Home contended—

1. The conveyance of the lands held by the disponers under the contract 1715, implied a conveyance of the clause of warrandice thereof with reference to the lands; and the special assignation to the contract itself in the conveyance of Sybsterwick, and the general assignation as to the other lands were quite sufficient to transmit the warrandice in it. ¹

2. The right of warrandice itself can never be lost by silence for forty years, under a partial eviction; for whatever may be held in regard to the claim of relief in respect of that partial eviction, no prescription could begin to run to a greater extent, till a further eviction took place giving rise to an additional claim of relief; and,

3. Even as to the augmentations beyond forty years, these were never fixed as permanent burdens by any final scheme, and the allocation under an interim scheme cannot be held to be an eviction requiring the party, in order to procure his claim of relief from prescription, to institute an action, but such claim remains not subject to prescription, in the same way as has recently been found in regard to claims of relief by heritors paying under an interim scheme inter se. ²

With reference to Sir John Sinclair's separate defence, he pleaded, that the contract of sale of 1715 being one of the contracts which, by the conveyance to John Sinclair of Ulbster in 1719, that party was taken bound to “ratify, approve, and implement in the haill heads thereof,” he, as in right of the obligation of warrandice in that contract, had a complete title to call upon Sir John, as Sinclair of Ulbster's representative, to fulfil it.

Lord Mackenzie pronounced the following interlocutor:—“Sustains the title of the pursuer; finds that the defender, the Marquis of Breadalbane, is bound to relieve the pursuer, and his lands and teinds of Sybsterwick, as libelled, of all payments of stipend beyond the amounts of £29, 2s. 8d., Scots money, and two bolls of victual; and also to relieve the pursuer, and his lands and teinds of Wedderclett and Hauster, as libelled, of all payments of stipend beyond the amounts of £8, 6s. 8d., Scots money, and two bolls of victual, in all time coming: But this, with exception of those portions of the stipend which are payable by the pursuer for his said lands or teinds under any augmentation of stipend granted forty years before the pursuer insisted on the present claim of relief; and, in respect to the pursuer's claim for relief or repayment of arrears of stipend for years by-past, and in respect to the liability of the defender, Sir John Sinclair, appoints the parties to be further heard.”

Against this judgment all parties reclaimed—Horne in so far as it found the Marquis of Breadalbane not bound to relieve him of those

_________________ Footnote _________________

¹ Hamilton v. Montgomerie, Jan. 28,1834 (ante, XII. 349).

² Weatherstone and Others V. M. of Tweeddale, Nov. 12,1883 (ante, XII. 1).

portions of the stipend payable under augmentations granted 40 years before the raising of this action—the Marquis in so far as he was found liable in relief at all—and Sir John Sinclair in so far as he was not at once assoilzied.

The Court ordered Cases, at advising which (February 20, 1834) the Judges delivered their opinions as follows:—

Lord Justice-Clerk.—It is clear that Horne did right to make Sir John Sinclair a party, and on the ground of the clause in the conveyance to Sinclair of Ulbster, in 1719, whereby he was taken bound “to ratify, approve, and implement” all the bargains and sales of Lord Glenorchy or his father as to these lands. Horne therefore did right to call him, the contract of sale in 1715 being one of those deeds which Sir John's predecessor was taken bound to implement; and the question comes to be, if Horne has a good title to insist in the action. I have no doubt at all that there has been a transmission to him of the right granted in 1715, and of which he is entitled to avail himself. Then, as to the obligation itself, the terms of it are fully stronger than in any case where we have found a disponee relieved of all augmentations. Supposing it, therefore, to be a valid obligation, and that Horne has right thereto, it is, however, said, that all claim is cut off by prescription. It is a matter deserving considerable attention, how far, as to an obligation of this kind, any party is entitled to plead the benefit of the negative prescription, in respect of mere interim-decrees of locality. It is settled, that, when a final decree is pronounced, heritors are entitled to relief, as among themselves, for any over-payments under interim-decrees, however long back; and I am not satisfied that there are any termini habiles for such prescription, as in a question of relief under a clause of warrandice. Submitting to an interim-decree affords no presumption of dereliction. But, on one point, it is clear that there is nothing to prevent the party from saying, that, as to all future augmentations, he must be relieved whenever the attempt is made to lay them on him. Therefore, I think the Lord Ordinary right in finding Horne has a valid obligation; and the amount of the relief I would leave open for farther discussion.

Lord Mackenzie. ^*—When there is a set of heritors, between whom payment is regulated by an interim-decree of locality, it is impossible there can be prescription as to their rights of teinds among each other, which are subjects of litigation in dependence till the final scheme be approved of. But here there is an extrinsic obligation, not arising from the respective rights to teinds. Lord Breadalbane comes under an obligation as an individual, and without reference to his being an heritor of teinds. Then comes the question—an interim locality is imposed, and no claim of relief is made—Does prescription run? An interim locality is a burden as completely incurring the obligation of warrandice as a final one, and it was the proprietor's duty to have called on the party bound in relief whenever the augmentation was brought, and he might then have had judgment to be relieved of the interim locality. This is totally different from relief among heritors, who cannot act, and have no claim of relief till final decree has been pro

_________________ Footnote _________________

^* In consequence of the absence of Lords Cringletie and Meadowbank, his Lordship was called in.

nounced. That is the ground I went on in sustaining the plea of prescription, and then I applied the act 1617 as to warrandice (which is not sufficiently founded on by Mr Horne), providing that prescription of warrandice shall run from the date of distress. Now, though the whole obligation is not to prescribe, because there has been distress to a certain extent, yet, on the other side distress was perfect by the interim locality, and the claim of relief to the extent of the stipend then imposed began from that moment to prescribe. Indeed, the instant the augmentation was got the distress applied, as the minister might have charged any one of the heritors for the augmentation to the whole extent of his teinds.

Lord Glenlee.—The point of title, as to Sybsterwick, is the plainest thing possible; and, even as to the others, I think there is a sufficient transmission of the obligation. The next question is, as to the limit of the obligation; and I think it is the broadest I ever saw. Then, as to the plea of prescription, 1 was never more at a loss. I had great difficulty, as there are no decisions, and I was disposed to put a question to the other Judges—How far, and to what extent, prescription applies? It is clear the judgment in the case of Weatherstone v. the Marquis of Tweeddale, which is quite right, has no application here whatever. Claims between heritors are toto cœlo different from a claim of relief against a third party; for, the moment this man was burdened, he was justly entitled to say to Lord Breadalbane, Defend me against this interim locality, or pay it for me, Then it is difficult, too, to see how the obligation is to prescribe quoad one part of it, and not to the rest. The right of warrandice is of an individual subject, the teinds, and it has been transgressed yearly for 100 years; and I have great difficulty in saying, that the right was lost to one part, and preserved as to others. I would therefore put the question I have stated to the other Judges.

Lord Justice-Clerk,—I cordially accede to this.

The Court accordingly pronounced this interlocutor:—“Adhere to the interlocutor of the Lord Ordinary submitted to review, in so far as to find that the obligation of warrandice in the contract of 1715, libelled upon, is effectual to relieve from all future augmentations of stipend, and that it has been duly transmitted to the pursuer: Therefore, and to this effect, sustain the pursuer's title, and decern; but, before further answer, ordain the printed papers in the cause to be laid before the Judges of the First Division and permanent Lords Ordinary for their opinion, whether, and to what extent, the plea of the negative prescription is applicable to, and can be maintained in defence of the present action.”

The following opinions were returned:—

Lords President, Balgray, Gillies, Mackenzie, Corehouse, Moncreiff, Fullerton, and Jeffrey.—In 1715, by a contract of sale, Lord Glenorchy sold to Francis Sinclair certain lands, with the teinds, and this contract contains a clause of warrandice, the first part of which is of a more general nature; but the latter part is in these words:—“And to warrant, free, and relieve the said Francis Sinclair and his foresaids of and from all augmentations of ministers' stipends and burdens upon the teinds of the said haill lands, whether by augmentations, new erections of parishes, and additional stipends, and that as well of all terms and years bygone as in all time coming, and from all other perils, dangers, incumbrances, and grounds of eviction whatsoever, as well not named as named, bygone, present, or to come, which may anywise stop, hinder, or impede the said Francis Sinclair, or his foresaids, in the peaceable possession, bruiking, and enjoying of the said haill lands and pertinents thereof above disponed, and teinds of the same, and intromissions with and recovering of the rents, maills, profits, and duties thereof, in all time coming, at all hands, and against all deadly,”under the special exception of the “proportions of stipend money and victual above specified, now conditioned and agreed upon to be paid by him, the said Francis Sinclair, and his foresaids, by this present right, to the minister serving the cure at the said parish kirk, and his successors, at the terms, and in the manner above mentioned.” This contract is dated the 28th March and 20th April, 1715. The right to the subjects and warrandice conveyed by this contract has passed through various authors into the pursuer, Mr Horne, who now pursues the Marquis of Breadalbane and Sir John Sinclair, as representatives of Lord Glenorchy, for relief, in reference to time both past and future, from certain augmentations of stipend obtained by the minister of the parish of Wick, within which the lands lie. These appear to have been obtained at different dates, particularly in 1719, 1793, 1807, and 1823. It does not appear that any locality of these augmentations has ever been approved of; but the augmented stipend has been paid under interim localities, and in this way a portion of stipend in each augmentation has been paid out of the lands conveyed to Mr Sinclair by Lord Glenorchy. No action upon the obligation of warrandice and relief of stipend appears ever to have been brought, in consequence of any of these evictions, until the present summons was raised in 1828. In defence against this action, various pleas have been stated, but the only one in reference to which the opinion of the First Division and Lords Ordinary is now required, is that of the negative prescription, the question being, “whether, and to what extent, the plea of the negative prescription is applicable to, and can be maintained in defence of the present action?”

It appears to us that the law applicable to this question is to be found in the statute 1617, c. 12, which, after enacting the positive prescription, provides, “And sicklike his Majesty, with advice foresaid, statutes and ordains, that all actions competent of the law upon heritable bonds, reversions, contracts or others, whatsoever, either already made, or to be made after the date hereof, shall be parsued within the space of fourty years after the date of the same, except the saids reversions be incorporate within the body of the infeftments used and produced by the possessour of the saids lands, for his title of the same, or registrated in the clerk of register, his books, in the which case, seeing all suspicion of falsehood ceases, most justly the actions upon the saids reversions engrossed and registrated, ought to be perpetual; excepting always from this present act all actions of warrandice which shall not prescribe from the date of the bond or infeftment whereupon the warrandice is sought, but only from the date of distresse, which shall prescribe, it not being pursued within fourty years, as said is.”

Under this provision, we think that when any subject is warranted, as soon as the whole or any part of it is evicted, and consequently an action of warrandice or relief in reference to that total or partial eviction arises, then the negative prescription begins to run against that action from the date of the eviction or distress. The consequence, we think, is, that if the eviction be total, the whole warrandice may be lost in forty years from its date. If the eviction be partial, the warrandice may be lost to that extent, but no further. We do not think that the whole benefit of a clause of warrandice can be lost by negative prescription, because a small part of the subject warranted has been evicted, and action for that partial eviction has not been raised within forty years. To apply this to the present case: Part of the subject disponed by Lord Glenorchy was certain teinds, exposed, among other risks, to the risk of eviction by the minister for augmentation of his stipend; and against this Lord Glenorchy granted an obligation of warrandice and relief. When, after the date of this obligation, the minister obtained an augmentation, we think that the obligation of warrandice and relief instantly applied, and that an action of warrandice and relief immediately arose. For as soon as the augmentation was granted, it instantly affected the teinds, and the minister had immediate right to charge any teind-holder, as intromitter with the teinds, for the whole amount of his augmented stipend, leaving the heritors to their relief against each other. Each heritor's teinds, too, became properly and ultimately liable for a certain proportion of the augmentation. Though it might take some time before an interim locality was settled, and a very long time before a final locality was settled, yet the teinds of each heritor were not the less on that account truly liable to the burden of the augmented stipend in certain proportions from the date of the augmentation. It seems to us clear, therefore, that as soon as an augmentation was granted, an action arose for relief from the augmentation, in terms of the obligation of warrandice, and consequently the negative prescription began to run against that action, and against the obligation of warrandice and relief pro tanto.

We do not think that Mr Sinclair, or his successors, were limited to a set of actions brought from year to year, for relief from annual payments of augmented stipend. We think they were fully entitled, immediately on the granting of each augmentation, to have brought an action for relief from that augmentation, out and out, in all time coming; and, therefore, we think that it is against such an action that the negative prescription came to run. Indeed, the present action contains a conclusion of that very kind for relief from the augmentations in all time coming.

Neither do we think that the running of the prescription could be delayed by an interim locality. That might bar action of relief by the heritors inter se, for extra payments of stipend, but had nothing to do with the relief from the augmentation due to one heritor, not by other heritors, but by his authors, who sold him the teinds with warrandice from augmentations, for which relief action became instantly competent, and might competently conclude for relief from the interim locality itself, as consequent on the augmentation, against which the warrandice was granted.

We are of opinion, therefore, that the negative prescription against the obligation on which this action is founded ran from the date of each augmentation, and in reference to that augmentation; and, therefore, that the negative prescription affords a defence to the extent of the augmentations granted 40 years before the pursuer raised the present action of relief, as has been found by the Lord Ordinary.

We have only to add, that we do not think that the whole obligation of warrandice and relief from augmentations could be lost by the negative prescription running after the granting of one or more augmentations, partially affecting the teinds, more than the whole of the warrandice of any subject is lost by one or more evictions of parts only of it followed by neglect, to pursue for relief thereof during forty years. We think that what prescribes under the statute 1617 is the right of action for any distress or loss actually incurred by eviction; and that the prescription cannot extend further than the eviction. The contrary rule would expose the warrandice of great estates to be lost by the most trifling evictions of inconsiderable parts; and we see no authority for extending the statute to so severe an effect.

Their Lordships of the Second Division now expressed their concurrence in this opinion, and adhered to the Lord Ordinary's interlocutor.

Solicitors: A. Monypenny, W.S.— Davidson and Syme, W.S.— D. Bridges, W.S.—Agents.

SS 13 SS 296 1835