Scottish Court of Session Decisions

This was a question arising in the locality of Wick, between Mr Macleay of Keiss, and Mrs Sinclair of Freswick. In the interim locality Mr Macleay was localled on for stipend, not only in respect of his own lands of Keiss but also in respect of the lands of Nybster, belonging to the respondent. He claimed to have the scheme of locality rectified and to be relieved of the stipend localled on him in respect of Nybster. The respondent, on the other hand, maintained that the objector was bound to relieve her of all stipend and augmentations of stipend in respect of Nybster, in virtue of an obligation which had been recognised and acted on in all localities since 1772. This obligation is contained in a minute of sale of the lands of Nybster by Sinclair of Dunbeath to Sinclair of Freswick in 1740. By that deed the seller bound himself to deliver to the purchaser a disposition of the lands of Nybster, with the teinds, “free of all stipends, schoolmaster's fees, and other public burdens and impositions whatsoever;” and also of the lands of Keiss, “in real warrandice and security of the said lands of Nybster, teinds and pertinents thereof. No conveyance of the warrandice lands was ever executed. Keiss was acquired by Sinclair of Ulbster from Sinclair of Dunbeath, and subsequently passed into the hands of the objector's uncle. The objector is therefore only the singular successor of Sinclair of Dunbenth, who executed, as seller, the minute of sale in 1740. No constitution of the burden is alleged to exist in any of the feudal titles of either party.

The Lord Ordinary ( Barcaple) found that the respondents had not set forth any ground sufficient in law for localling upon the objector's lands in respect of the lands of Lybster belonging to the respondent Mrs Sinclair, and remitted to the clerk to correct the interim scheme in terms of this finding.

His Lordship after stating in his note the facts of the case said:—“In these circumstances it is clear that, so far as regards the minute of sale and the titles, there not only is not and never has been any real burden imposed upon the lands of Keiss for the relief of Nybster from stipend, but the objector is not under any personal obligation, as the singular successor of Sinclair of Dunbeath, in the lands of Keiss. The Lord Ordinary does not understand that this is disputed by the respondent, who rests her case upon the plea of res judicata under previous localities, and a long course of payment and acquiescence. It appears to be the fact that in all the localities since the purchase of Nybster by Sinclair of Freswick, beginning with 1772, the proprietor of Keiss has been localled upon for the share of stipend effeiring to Nybster. The respondent stated (Art. X.) that in the first locality there is a note signed by the minister bearing that ‘the estate of Keiss is liable in the stipend and augmentation for Nybster by bargains twixt the late Freswick, who purchased Nybster, and the said Sir William Sinclair of Dunbeath. This principle of localling appears to have been then adopted, and to have been unchallenged ever since. But it does not appear that any question was ever raised in regard to it. In these circumstances, the Lord Ordinary does not think that the mere unchallenged adoption of this mode of localling in previous localities

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can be held to constitute res judicata in regard to a question which was never made the subject of discussion by the parties, or express decision by the Court. Still less can it be so held, seeing that none of the localities have been approved of as final.

“It is a different, question what effect is due to the long course of payment and acquiescence. In any view, the Lord Ordinary does not think that this can be founded upon as against The objector with reference to the period while Keiss belonged to the Ulbster family, before it was acquired by the objector's ancestor in 1813. In regard to the period since that time, it must be kept in view that this is not a question of prescription, and that in order to constitute the alleged obligation as incumbent upon the proprietor of Keiss, it must be shown that he took it upon him in a manner clearly importing that he intended to do so, and in the knowledge that he was under no previous obligation in the matter. But the Lord Ordinary thinks that the inference from the whole facts of the case is, that the parties were all along in error as to the existence of an obligation, and he is of opinion that in these circumstance there is nothing to bar the objector from now betaking himself to his legal rights.

“In this view of the case it is unnecessary to consider whether the Court would ever sanction such a mode of localling where the question is raised, there being no real warrandice. The case of Dykes v. Marshall is adverse to such a practice; and if it were sustained on the ground that the present proprietor of Keiss, or those whom he represents had personally adopted the obligation, it does not appear that it could be held effectual against a singular successor who should now purchase the lands with no notice of such a burden on the records.”

Mrs Sinclair reclaimed.

Adam (with him Solicitor-General) for reclaimer.