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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Farquhar of Gilmillscroft v. The Right Hon. Hugh Earl of Loudoun [1720] UKHL Robertson_303 (5 June 1720)
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Cite as: [1720] UKHL Robertson_303
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SCOTTISH_HoL_JURY_COURT
Page: 303↓
(1720) Robertson 303
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 66.
v.
Subject_Kirk Patrimony. —
In 1631, certain vassals in church lands advanced money to the Crown, to assist in redeeming a wadset granted to the Earl of Loudoun, the lord of erection, upon condition that they should hold of the Crown as superior, and have certain other privileges: in 1633, the superiorities of all church lands were gratuitously annexed to the Crown; and about same time vassals who should advance money for redeeming their feu duties were allowed by his majesty to treat with the treasury for that purpose, and to retain their feu duties in proportion to the sums advanced. In a question between the wadsetter and the vassals, who advanced money in 1631, it is found that they were not allowed to retain their feu duties, though they had paid money for privileges, the greatest part of which had been granted to other vassals gratuitously.
Upon the Reformation in Scotland, the lands, teinds, and superiorities belonging to monasteries and other religious houses, devolved to the Crown; and the greatest part of them were soon after erected into temporal lordships, in favour of certain persons called Lords of Erection. In 1608, the lordships of Keilsmuir and Barmuir, which were part of the estate which belonged to the abbacy of Melrose, was given to Hugh then Lord Loudoun, the respondent's predecessor. King Charles the First made a general revocation of all those grants as prejudicial to the Crown, which occasioning discontents, the lords of erection afterwards subscribed a deed called The General Surrender, whereby they submitted to his majesty (under certain restrictions) their several interests by those grants; upon which surrender the king's decrees arbitral proceeded, which were confirmed in parliament.
After this, in 1630, a contract was entered into between his then majesty and John then Earl of Loudoun, whereby the said earl agreed to resign and surrender to the Crown the right he then had to the lands, superiorities, &c. of the lordships of Keilsmuir and Barmuir, and certain jurisdictions, for which the Crown engaged to pay him 32,000 merks, being ten years's purchase; Whereof 14,000 merks, in consideration of the jurisdiction of Sheriffship, were actually paid, and his majesty granted a wadset
Page: 304↓
In 1631, George Reid and Robert Farquhar, the appellant's predecessor, two of the vassals, for themselves and in name of the other vassals, entered into a contract with the Crown, whereby they agreed to pay to the treasury 12,000 merks, to be applied towards the redemption of the Earl of Loudoun's wadset, the other 6000 merks to be paid by the treasury: and in consideration of the said 12,000 merks paid by the vassals his majesty became engaged to grant them new charters of their lands to be holden of the Crown, to release all claims that might arise from the breach of the conditions of their several infeftments, and to give them other advantages, provided that they should always be bound to pay their usual feu duties to the Crown.
Pursuant to this contract, John Earl of Loudoun, was afterwards, upon the 28th of September 1633, by order of the then treasurer depute summoned to appear in St. Giles's Church, Edinburgh, at Martinmas then next, to receive his 18,000 merks. Before this term of Martinmas the king sent down his letter, dated the 8th of October 1633, directed to the lords of the treasury, and entered in the books of exchequer the 9th of November following, to this purpose, “That forasmuch as divers of the o vassals of erection, as his majesty was informed, were willing to advance money, for buying their feu mails, to his majesty's use, they having retention in their hands of their feu mails for such years after the advancing of the money as in reason and equity might compensate the money to be advanced by them, that his majesty approved of that course, and it was therefore his pleasure that public intimation should be made to all persons having interest, to the effect that such of the vassals as were willing might come in and agree with the treasurer and his deputy for advancing the said money, and get security by act of the exchequer for retention of their feu mails, for such terms as should be agreed upon.” Prior to the date of this letter, the superiorities of all church lands throughout Scotland had, by the act 1633, c. 14. been annexed to the Crown.
At Martinmas 1633, the 18,000 merks were tendered to the Earl of Loudoun in St. Giles's Church, but neither he, nor any person for him, having appeared to receive the money, it was consigned in the hands of the dean of guild of the city of Edinburgh, for the earl's use, and an instrument taken thereupon. An action of declarator was also commenced against his lordship in the Court of Session, by the officers of the Crown, to have it declared, that the said wadset was redeemed.
1707, c. 11.
By a second contract, in 1634, between the treasury and the then Earl of Loudoun, it was agreed that upon payment of the 12,000 merks, being the sum advanced by the vassals, the earl should surrender his right of the superiorities to the Crown, saving to himself his right to the feu duties until the other 6000 merks, for which the wadset was redeemable, should be paid. Accordingly
Page: 305↓
The respondent's predecessors had all along continued to exact and receive from the vassals in the said lordships the feu mails, originally payable by them, till 1687, when the appellant stopped payment of his feu-duty, amounting to 34 l. 9 s. Scots annually. The appellant, in virtue of an assignment by the said George Reid in favour of the appellant's predecessor, was become entitled to the whole benefit and advantage of the said 12,000 merks, advanced by Farquhar and Reid, in terms of the contract with the treasury in 1631, for redemption of the wadset: and he contended that in virtue of the said contract, and the king's letter in 1633, he was entitled to retain his feu-duties, until he was paid the said 12,000 merks advanced to the Crown.
The respondent thereupon (after the date of his new charter in 1707) brought an action against the appellant, before the Court of Session, for payment of the arrears of his feu-duties. The appellant appeared and made defences, and after sundry proceedings the Lord Ordinary, on the 9th of July 1719, “Found that the superiorities, feu-duties, and other rents of the erected lordship of Keilsmuir and Barmuir, being wadset by King Charles the First to John Lord Loudoun for 18,000 merks in the year 1630: and albeit by the subsequent contract 1631, his majesty ordained the said wadset to be redeemed, and the feuars to furnish 12,000 merks, and the treasury 6000 merks, for redemption thereof, it was agreed that after redemption the feuars should hold of his majesty, and pay their feu-mails and duties in their infeftments: and sound, that the 12,000 merks being paid to my Lord Loudoun, he did, in 1634, renounce the wadset as to the superiorities, and resign the same into his majesty's hands, to the effect they might hold of the Crown; but found that the said Lord Loudoun was thereby allowed to retain the wadset right for the feu-mails and duties; which wadset and infeftment was ratified in parliament, 1633, in his favour, till the wadset should be redeemed: and found by the charter under the great seal, and infeftment thereon, in favour of the respondent, in 1707, the reversion of the wadset as to the feu-mails and duties is discharged, and the said duties of new disponed to him; and repelled the defences founded on the king's letter, in regard it was not alleged, that the appellant did make any agreement with the exchequer, by advancing of money and receiving a warrant for retaining their mails in terms of the said letter, the 12,000 merks being for getting right to their superiorities, and other advantages, in the terms mentioned in the contract 1631.”
The appellant reclaimed: but aster answers for the respondent, the Court on the 28th of July 1719 “Found that the appellant
Page: 306↓
Entered, 24 March 1719–20.
The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 9th, 28th, and 30th July, the 19th August, the 21st January, and 17th February last (a).”
Heads of the Appellant's Argument.
Although there was nothing expressly stipulated in the contract for the retention of the money to he advanced by the vassals, yet the whole strain of that contract shews the king's carefulness that the vassals should have suitable reparation. And though, perhaps, the method for it was not then resolved upon, yet it cannot be reasonably supposed that those, who advanced their money early, should be worse used than others, who came later to his majesty's assistance. Nor could those little considerations, of holding immediately of the Crown, instead of the Lords of Erection, or the dispensing with irritancies, or containing their rights in six signatures, be looked upon as any compensation for their advancing so much money; since the advantage of holding of the Crown is given by act of parliament to all vassals of church-lands, as well as to those who advanced their money; and the dispensing with irritancies could concern those only who had irritancies in their charters, of whom perhaps there were few or none; and the comprehending their rights in six signatures, is calculated for small vassals; for, those that are more considerable, will not desire such a comprehension, but rather to have their own signatures by themselves.
The kind's letter did very well explain his intention towards the vassals, who should advance money for the said redemption; and though it did not come till two years after the contract, yet the money which the appellant's predecessor and the other vassals were thereby obliged to advance, was not so advanced till the day that the said letter was recorded in the Exchequer.
Heads of the Respondent's Argument.
By the said contract 1631, the appellant's predecessor and other vassals covenanted to pay that sum of 12,000 merks, in order to have the privilege of holding their lands of the Crown, and for the other causes expressed in the contract itself, and never were to
_________________ Footnote _________________ (
a) It appears from the Journals that the Earl of Loudoun was present In the House when this appeal was entered; he
consents that the same should be received, and to answer the same; and an order to receive, and to answer
forthwith, is thereupon made.
Page: 307↓
The king's letter in 1633 had not the least relation to the appellant's case; it was written in consequence of an act of parliament in that same year, annexing the superiorities of church-lands to the Crown, reserving the feu-duties to the Lords of Erection, redeemable by the Crown at certain rates, and concerned such vassals of church-lands, as, after the date of that letter, should advance money for redemption of their feu-duties to the use of the Crown; but this letter never took effect. And supposing (which cannot be admitted) that this letter had relation to the appellant's case, yet no agreement having been made with the Exchequer, as was by that letter directed, the letter could give the appellant no power of retention. For the appellant never could have had a retention, supposing it had been covenanted to him, as it was not, until once the earl's wadset was totally redeemed, which never was done, and cannot now be done, after the said a of parliament (1707, c. 11.) and grant from her late majesty, renouncing the right of reversion.
Judgment, 5 May 1720.
After hearing counsel, It is ordered and adjudged, that the said petition and appeal be dismissed and that the several interlocutory sentences or decrees therein complained of be affirmed.
Counsel: For Appellant,
Rob. Raymond.
Pat. Turnbull.
For Respondent,
Rob. Dundas.
Will. Hamilton.