United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Gubernators of Heriot's Hospital, and James Young their Treasurer v. Robert Hepburn of Bearford [1715] UKHL Robertson_118 (2 June 1715)
URL: http://www.bailii.org/uk/cases/UKHL/1715/Robertson_118.html
Cite as: [1715] UKHL Robertson_118

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 118↓

(1715) Robertson 118

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 30.

The Gubernators of Heriot's Hospital, and James Young their Treasurer, Appellants

v.

Robert Hepburn of Bearford, Respondent

2d, June 1715.

Subject_Kirk Patrimory. —

Dalrymple,

9 June 1714.

The superiority of certain church lands, which were purchased from the crown for an onerous consideration, and which were specially excepted in the act 1633, c. 13. “anent regalities of erection,” part of the general re-annexing acts, found to be in such purchasers, where the vassal had taken charters and infeftments from the subject superior for near 100 years.

1587. c. 29.

The lands of the popish clergy Soon after the reformation in Scotland fell to the crown, and his then Majesty King James the 6th granted great part of these church-lands to certain noblemen and gentlemen, and erected them into temporal lordships. Sir William Ballindine had a grant from his majesty of the estate, which had belonged to the abbey of Holy-Rood-House, which comprehended the barony and regality of Broughton and Canongate. By the act of parliament 1587, c. 29. the temporalities of all benefices and church lands were re-annexed to the crown; but with an exception in the following words, “Our Sovereign Lord and the estates have declared, and by the tenor hereof declare, decern, and ordain that the lands, lordships, baronies under-written, &c. are not nor shall not be comprehended in the said annexation, excluding the same allutterly therefrae, to remain with the persons to whom they were first disponed after the form and tenor of the infeftments made to them thereof.” Then follows an enumeration of the exceptions, among which is the barony of Broughton.

1633, c. 10. & 14.

In 1627, Sir William Ballindine, among other lords of erection, signed the submission to Charles the First, upon which his majesty's decreet arbitral afterwards proceeded. In the same year 1627, Sir William, for an onerous consideration sold and conveyed the said lands to Robert Earl of Roxburgh: And in 1630, the Earl, with consent of Sir William Ballendine, sold and conveyed the same to King Charles the First, for the price of 280,000 merks Scots. This sum, however, not being paid, the King granted to the Earl a wadset over the lands in security of the said sum, under the great seal, on which the Earl was infeft.

c. 13.

In 1633, several acts of parliament were passed in consequence of the King's decreet arbitral. By c. 10. & 14. the superiorities of all church lands are annexed and declared to remain with the crown for ever, and all rights and settlements whatsoever made and granted to any person or persons by his then majesty or his predecessors, preceding the date of the said acts, are declared void and null. In c. 13. of these acts, which is entitled “ Anent Regalities of Erections,” it is “declared, decerned, and ordained, that the lands and barony of Broughton,” and others “mentioned

Page: 119↓

in the infeftment granted by his majesty under his highness's great seal, to his highness's right trusty cousin and counsellor Robert Earl of Roxburgh, of the date the day of 1630 years, shall not be comprehended herein, excluding the same allutterly therefrom, to remain with the said Earl, his heirs and successors, after the form and tenor of the infeftments made to him and his authors of the same.”

In 1637, a transaction took place between his then majesty and the appellants; and the king, by a deed, bearing to be with consent of his exchequer, and of Robert Earl of Roxburgh, sold and in the most ample manner disponed to the appellants, the said barony and regality of Broughton and Canongate, and in verbo principis, promised to obtain an act of parliament dissolving these lands from the crown, and declaring that it was the meaning of the king and parliament, that the exception in favour of the Earl of Roxburgh, contained in the said 13th act was ordained and intended to have been a quality of the said 14th act also: and in consideration thereof, the appellants paid off the Earl of Roxburgh's wadset, amounting to 11,000 l. sterling, and further paid the sum of 3000 l. sterling the crown. In 1641, a private act of parliament was passed declaring “That the lands and barony of Broughton shall be by no means esteemed to be comprehended within the 14th act of the first parliament of King Charles the First; but the words, excepting the regality and and barony of Broughton, shall be esteemed as inserted in that 14th act in the year 1633 above mentioned.”

1661, c. 15.

1661, c. 53.

In 1661, an act of parliament was passed, rescinding all acts passed in the parliament 1641, but it contained a proviso or declaration in these words, “And it is hereby declared, that all acts, rights, and securities passed in any of the pretended meetings above written, or by virtue thereof, in favours of any particular persons for their civil and private interests shall stand good and valid unto them until the same be taken into further consideration, and determined in this or the next Session of this parliament.” Another act of parliament was passed same year, ratifying the annexation acts of 1633, by which all and whatsoever grants, rights, or infeftments of the said superiorities made or granted by his then majesty, or his father King Charles the First, at any time since the Submission in 1627 are rescinded and declared void and null, with the exception of one infeftment in favours of John Earl, afterwards Duke of Lauderdale. And this act besides, holds all exceptions contained in the acts of 1633, as contained in that act, and contains a proviso or declaration, by which it is always declared, that “notwithstanding of this act, any who have gotten or shall get any new infeftment of superiority of Kirk lands, the same shall stand good as to such vassals, who have given their consents to the said right of superiority; in regard that such a consent as to his majesty is of the nature of a resignation of their property in favours of the said superior.”

The respondent was proprietor of the lands of Lochbank, part of the said barony of Broughton, which had been acquired by

Page: 120↓

the appellants in manner before-mentioned. These lands had been held by the respondents predecessors, without challenge, from the appellants as superiors thereof, and the latter had granted sundry charters and precepts of Clare Constat to the former as their vassals, from 1641 downwards. But the respondent claiming to hold his lands of the crown, the appellants brought an action of declarator of non-entry against him before the Court of Session; and the respondent brought a counter action of declarator against them, concluding that his privilege might be declared to hold in capite of the crown. Both causes being heard before the Court of Session, an interlocutor was pronounced on the 13th of February 1714, by which it was “declared that the respondent was acquitted from all claims of superiority for his lands of Lochbank at the appellants' instance; and that the respondent, his heirs and successors, had the undoubted right and privilege to enter vassals, and hold the fee of those lauds of his majesty and royal successors the immediate lawful superiors thereof.” The appellants having reclaimed against this interlocutor, the Court, on the 9th of June 1714, “adhered to their former interlocutor, and found that the arguments and acts of parliament made use of and produced by the appellants did not exeem the superiority of the lands in question from the annexation made by the 10th and 14th acts of the parliament 1633, and therefore decerned in favour of the respondent.”

Entered 22 June 1714.

The appeal was brought from “an interlocutor or sentence of the Lords of Council and Session, dated the 13th day of February, 1713–14, and the affirmance thereof on the 9th of June 1714.”

Heads of the Appellants' Argument.

By the act 1633, c. 14. the superiorities of such church lands only were annexed to the crown, the original grants of which stood merely upon charters from the crown. But the barony of Broughton, which comprehends the subject of the present debate, was not in that situation; for though it had been originally granted by a charter from the crown, yet that grant was not only excepted from the general act of resumption and annexation passed in 1587, but the said grant was confirmed and appointed to remain with the grantees according to the said charter and infeftments. Thus the right stood and stands on the foot of a public law not repealed expressly, nor by any necessary consequence. 2dly. The king having for an onerous or valuable consideration purchased this barony, and not having paid the price, simul et semel, wadset it for the price; and it cannot be imagined, that the king and parliament meant by the general words of the said act 1633. c. 14, to deprive the Earl of Roxburgh, under whom the appellants claim, of his wadset. 3dly. This is the more evident, because in the 13th act, passed the same day in the said parliament 1633, the above reservation is expressed in the most ample manner, not with regard to, the jurisdiction of regality only, but also with regard to the lands and barony of Broughton, comprehending the milns and others thereto belonging. It were indeed to suppose, a

Page: 121↓

thing against all equity and reason, that the very next subsequent chapter of these acts should be deemed to take away the benefit of this exception without an express resoinding clause or reason assigned; and indeed whoever is acquainted with the history of these acts of parliament, containing resumption of the temporality of jurisdictions and offices of church lands knows that these were not properly distinct acts, but several heads of one great settlement, the printing and forming of which were of course left to the clerk register, who has made the 14th act the last, though by the very tenor of the 13th act it appears, that it was the last in order, and the exception was inserted in that place as an exception from the whole annexation: It, therefore, excepts not specially the jurisdiction of regality which is the subject of the act, but the barony and lands, which were no part of the subject of it regularly. 4thly. As this must be good to defend the wadset for the said sum of 11,000 l. sterling, so it ought to defend the reversion which was fairly purchased for the additional price of 14,000 l. whereof the 11,000 l. was paid to the Earl of Roxburgh, and the remaining 3,000 l. to the crown, for which the hospital have not of yearly income above 200 l. To satisfy the nicest scruple, too, it was covenanted on the part of the crown to procure an act of parliament, declaring that it was the meaning of the king and parliament, that the exception in favour of the Earl of Roxburgh, contained in the said 13th act, was ordained and intended to have been a quality of the said 14th act also. And accordingly there was an act of parliament passed in 1641, in these terms, and that not in the terms of a common ratification, but as a private act, confirming the king's deed done with advice of his council in that matter for a very valuable consideration paid and performed by the hospital.

This last mentioned act 1641 is not repealed by the rescinding act 1661, c. 15.; for this rescinding act contains an exception of all private acts pasted in that parliament, of which nature is the act in favour of the appellants. The respondent objected, that this last exception was not absolute, but temporary, till those private acts should be taken into further consideration in that or the next Session of parliament; but that the case of all the church lands was taken into consideration in these Sessions: there never was, however, any act of parliament subsequent to the last abovementioned rescinding act, which in any manner of way had under consideration any of the church lands, so that the 15th act of the parliament 1661 still stands good and valid.

1617, c. 12.

It is to be remembered, too, that the king was in possession of those lands in fee, upon passing the above-mentioned act 1633. But if the respondent had any right or title, as he pretends, to the superiority of the above-mentioned lands, he would be debarred by the act of parliament 1617, c. 12., “Anent Prescription of Heritable Rights,” by which it is enacted, “that whosoever his majesty's leiges, their predecessors and authors, have bruiked or enjoyed heretofore or shall happen to brook in time

Page: 122↓

coming by themselves, their tenants, and others having their rights, their lands, baronies, annual-rents, and other heritages, by virtue of their heritable infeftments made to them by his majesty, or others their superiors and authors, for the space of 40 years, &c. that such persons, their heirs, and successors, shall never be troubled, pursued, or inquieted in the heritable right and property of their saids lands and heritages foresaids by his majesty, or others their superiors and authors, their heirs and successors, nor by any other person pretending right to the same by virtue of prior infeftments, public or private, nor upon no other ground, reason, or argument, competent of law, except for falsehood.”

Betides the respondent and his predecessors, in virtue of the the clause of the before-mentioned act 1661, c. 53. are debarred from holding of the crown, for his predecessors have for almost 100 years “given consent to the said right of superiority,” and taken their charters from the hospital accordingly.

Heads of the Respondent's Argument.

The acts or statutes of annexation are general, and comprehend all superiorities of church lands whatsoever, and make no distinction whether the grant had been for an onerous consideration or not, and whether before or after the annexation. Particularly the before recited act 1661, c. 53. does rescind all grants made by King Charles the First, except that in favour of the Duke of Lauderdale, which confirms the rule and law as to all other grants not excepted. Though the grant made to the Earl of Roxburgh, and by him to the appellants, might have been for onerous considerations; yet the first grant was in favour of Ballindine of Broughton, and it does not appear that his grant was for any onerous consideration, and he is one of those who subscribed the submission to the king in 1627, upon which the acts of annexation followed.

With regard to the act 1633, c. 13. relied on by the appellants, there is a great distinction between a regality and a superiority. Several of the church lands having been erected into regalities in favour of the bishops and abbots, whereby they had a power over their tenants and vassals in civil and criminal matters; these were also annexed to the crown, with the exception in favour of the Earl of Roxburgh, so that the vassals of that regality remained subject to the earl's jurisdiction or power. But this is different from the superiority; a convincing proof of which is, that the very next act, c. 14. annexes the superiority of all church lands to the crown, without any exception in favour of the Earl of Roxburgh: and the act 1667, c. 53. rescinds all grants made by King Charles the First, except that in favour of the Duke of Lauderdale. But what fully answers the appellants' argument on this head is, that when the Earl of Roxburgh in 1637 fold the lands of Broughton, with consent of the king, to the appellants, his majesty promises in the next parliament to procure these lands

Page: 123↓

dissolved from the crown, so that if they had not been annexed, there was no occasion for such an act.

But this was never done, nothing was obtained in the parliament 1641, hut a simple ratification passing in course on the lass: day of the parliament, among 300 more, of which this is the 135th: they were never printed among the other acts of parliament, but passed of course, and might be obtained by any person who demanded them; and they can never prejudge the interest of a third person having a prior right, which is the case of the respondent. His right is preserved by the act Salvo jure cujuslibet, which is always the last act of every parliament. But dissolutions of superiorities that had been annexed to the crown must be by such public acts of parliament as pass with all the deliberation and solemnities of the acts of annexation, and have the royal affect, which is not pretended to have been the case with the act 1641.

With regard to that part of the act 1661, c. 53, founded on by the appellants, There being a publick law annexing these superiorities to the Crown, no deed of the vassals could without consent of the Crown deprive it of that superiority, but according to the tenor of the exception contained in this last-mentioned act, which is an express consent by some writing from the vassal. This is clear by the words of the statute, viz. “In regard such a consent, as to his majesty, is of the nature of a resignations” or giving over the lands to the superior to be holden of the king. So, this consent was to be by such an express and positive deed in writing, as was equivalent to the vassals surrendering to the king; and the same vassal continuing only to take charters, or new titles, from those who had been lords of erection, was but a temporary expedient, and a consent by implication, and not equivalent to a resignation in the Crown's hands required by the statute.

Nor can the act 1617, c. 12, with regard to prescription take place here, for the appellants' contract in 1637 was entirely cut off as to the right of superiority, by the act 1661, c. 53, and so was no title of prescription unless it had been renewed after the said act. The possession for forty years, by the law of Scotland, gives no right, where the person claiming it has no title, and when the defender has it in his choice to act and do this or that way, (which by the doctors of the civil law is called actus meræ facultatis,) except he had given a positive writing binding him to it. This is confirmed by all the eminent Scots Lawyers who write on this subject, and is the constant practice of the Lords of Session in the like cases. Nor is it to be doubted but that the crown in this case can oblige the respondent to take his charters or titles, immediately from it as vassal to the crown, because no deed done by the vassal can prejudge the sovereign without his own consent.

Judgment, 2 June 1715.

After hearing counsel, It is ordered and adjudged that the said interlocutor or sentence, and the affirmance thereof complained of in the said appeal, be reversed; and it is ordered and declared, that the

Page: 124↓

superiority of the lands in question, called Lochbank, lying within the barony of Broughton, shall belong to the appellants.

Counsel: For Appellants, David Dalrymple. Sam. Mead.
For Respondent, Edward Northey. Spencer Cowper.

The judgment here reversed is founded on in the Dictionary voce Kirk Patrimony, vol. 1. p. 531.

1715