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SCOTTISH_HoL
Page: 1665↓
(1869) 2 Paterson 1665
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 86
v.
Subject_Teinds — Old Valuation — Titular a Party — Prescription —
A decreet of valuation of teinds dated 1647, purported to be made in terms of an agreement between A., an heritor, and B. the tacksman and titular, that the teinds of the lands shall be in all time coming 210 pounds Scots. An action of reduction of such decreet being raised:
Held (affirming judgment), 1. That the valuation was intended to be final and permanent. 2. That B. must be taken to have been titular at the time, ( otherwise the Commissioners of Teinds must have known the decree was worthless,) there being no clear evidence, that the teinds belonged to any other person, and the subsequent enjoyment not being contrary to the decree. 3. That the negative prescription applied, and dated from the time when the parties had notice of the decree; and a process of augmentation in 1733, founded on and referring to the decree, amounted to such notice.
Subject_Decreet of Valuation — Defect of Parties —
Semble, It is no objection to a decreet of valuation, that the titular does not, on the face of the proceedings, clearly appear to have been charged—per Lord Westbury. 1
The action in which the interlocutors appealed from were pronounced was brought by the appellants against the respondents for reduction of a decree of valuation of the teinds of the respondents' lands, in the parish of Kirkhope, Selkirkshire, dated 28th July 1647, and, on reduction of the decree, for declarator of the right claimed by the appellants to levy the teinds of the respondents' lands at one fifth of the actual rental of the lands. The Lord Ordinary (Barcaple), having, by interlocutor dated March 7, 1865, assoilzied the respondents from the conclusions of the action, the appellants reclaimed to the Second Division of the Court, who, after a full oral argument for the parties, by interlocutor dated July 20, 1865, ordered Cases on the whole cause, and afterwards, on the Cases for the parties being lodged, by interlocutor dated January 30, 1866, appointed these Cases to be revised. The Revised Cases having been lodged, the Second Division, in consequence of the difficulty and importance of the questions raised, by interlocutor dated June 1, 1866, appointed the Revised Cases and the other papers to be laid before the Lords of the First Division and the permanent Lords Ordinary, with a view to their Lordships giving their opinion in writing on the question, whether the interlocutor of the Lord Ordinary should be adhered to or altered. A majority (six) of the consulted Judges, viz. the Lord President, and Lords Curriehill, Deas, Jerviswoode, Barcaple, and Mure, returned opinions for adhering to the Lord Ordinary's interlocutor, while three, viz. Lords Ardmillan, Kinloch, and Ormidale, returned opinions for reversing the Lord Ordinary's interlocutor, and giving judgment in favour of the appellants. These opinions having been lodged and boxed for the Second Division, their Lordships, on advising the cause, were equally divided in opinion,—the Lord Justice Clerk and Lord Neaves being with the minority of the consulted Judges, while Lords Cowan and Benholme were with the majority. A majority of the whole Court being thus for adhering to the Lord Ordinary's interlocutor, the Second Division, on February 20, 1867, pronounced an interlocutor affirming that of the Lord Ordinary; and these interlocutors were now the subject of appeal by the appellants, the pursuers of the action.
The appellants in their
printed case, stated the following reasons for reversing the interlocutors:—1. The decree of valuation sought to be reduced having been obtained without citation, and in absence of the titular, is not binding on the appellants. 2. The said decree cannot be held as binding on the titulars, as it affords no satisfactory evidence, that the teinds were properly valued, the only proof produced to the Commissioners having been an agreement as to the value of the teinds, to which the only parties were the tacksman and the heritor. 3. As the decree does not bear
ex facie to have been obtained against the titular, there are no
termini habiles for prescription. 4. The decree cannot be secured from challenge by any prescription, in respect, that it does not bear to have been obtained, and in fact was not obtained, against any one representing the interest which the appellants now represent, and so is
res inter alios as regards
_________________ Footnote _________________
1 See previous reports
5 Macph. 414;
39 Sc. Jur. 220.
S. C. L. R. 1 Sc. Ap. 426;
7 Macph. H.L. 19;
41 S. Jur. 348.
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The following reasons were stated by the respondents in their printed case for affirming the interlocutors:—1. Because the valuation in question was duly and regularly obtained, and because it cannot be set aside on any of the grounds stated. 2. Because, under the Statute 1641, cap. 30, and the other Statutes regulating teind valuation, the Commissioners had power to value teinds without calling the titular before them. 3. Because a valuation cannot be set aside, unless it be proved that it was obtained through collusion, or to the enorm prejudice of the parties interested in the teinds. 4. Because it is neither alleged nor proved, that the valuation in question was obtained collusively, or to the enorm prejudice of the parties interested in the teinds, and because it is not reducible on the mere technical ground, that the titular or other parties interested were not called. 5. Because it is to be presumed, that a right to the titularity was, at the date of the decree of valuation, vested in the Earl of Buccleuch, against whom the decree was obtained; and because the onus of proving the contrary was incumbent on the appellants, who have not discharged that onus. 6. Because it was competent to lead an effectual and permanent valuation binding on the titular, if the tacksman or other party in actual possession of the teinds was a party to the valuation. 7. Because, on the assumption that the Earl of Buccleuch was not the titular in 1647, the titularity was then in abeyance, and it was sufficient to call the party in actual possession of the teinds as a party to the valuation. 8. Because no relevant averments have been made or proved by the appellants to entitle them to have the decree of valuation set aside. 9. Because the decree is protected by prescription, both positive and negative. 10. Because challenge of the decree is excluded by acquiescence, homologation, and adoption, by all parties interested to challenge.
Lord Advocate (Moncreiff), and H. J. Moncreiff, for the appellants.—The first question is, whether the true titular was a party to the decree of 1647. The appellants alleged, that the true titular then was the Crown, and the Earl of Buccleuch was only the tacksman. The respondents have not alleged that any other person than the Crown was titular, and the reasonable presumption from the whole facts and documents was what the appellants state. The suggestion, that the Earl might have been a liferent titular is mere surmise unsupported by proof. If then the titular was not a party to the valuation of 1647, it is not binding on him— per Lord Moncreiff, Gordon v. Dunn, 7 W. S. 68; Simpson v. Skene, 15 S. 1163; Stewart v. Broun, 13 D. 566; Kirkwood v. Grant, 4 Macph. 4; Ferguson v. Gillespie, M. 15,768; 3 Paton, 534. It is not enough to say that the interests of the titular were sufficiently represented by the tacksman— Town of Kircudbright v. Earl of Selkirk, M. 15,765; Tweedale v. Smith, 17 July 1708, M. App. C. p. 3. The mode of using the words “tacksman and titular” in similar decreets at that period, shews that the Earl was described merely as tacksman. Thus in a decreet as to the teinds of Easter Glens dated 1696, the same expression is used, and yet it manifestly appears, that the party so described was not the titular. If then the titular was not called, the plea of prescription cannot assist the respondents. The positive prescription does not apply, for the property of the teinds is not called in question. The negative prescription does not apply, because the objection appears ex facie of the title— Tweedale v. Smith, supra. Nor is there any ground for acquiescence or homologation.
Sir R. Palmer Q.C., and Nevay, for the respondents.
Cur. adv. vult.
The objections made on the part of the pursuers to this decreet are twofold. The first of them, however, should perhaps not be stated as an objection to the decreet, because they insist, that, according to the true construction of the decreet, it in no way affects them, that the decreet is
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The Lord Ordinary, in the first interlocutor complained of, has decided in favour of the defenders, and has declared the validity of the decreet. The decision of the 20th February 1867 is an affirmation by the Lords Commissioners of Teinds of that judgment or interlocutor of the Lord Ordinary. The other interlocutor which is appealed from, of 16th of March 1867, is simply an interlocutor which follows as a matter of course, from the conclusion come to in the previous interlocutor.
The first and main question in this case (which has been most fully and ably discussed before us) is, what is the true construction of the decreet? And subordinate to that arises the question, whether or not the titular must be taken to have been summoned, and to have appeared on the occasion of that decreet being pronounced, or whether, on the contrary, the pursuers are now entitled to say, that the titular was not so summoned, and that the decreet was therefore irregular.
Now, as regards the construction of the decreet, before entering into the history of the case upon which it may be necessary to say a word presently, I would rather consider the effect of the decreet itself ex facie, and how under any ordinary circumstances that instrument ought to be construed, regard being had to the terms of the document itself as we now find it preserved in the registry, and of which we have unfortunately not a full and complete extract, because certain parts of the process appear to have been lost, which however contains, as it appears to me, all that is material for arriving at a just conclusion as to what is the scope and object of the decreet.
The decreet appears to have been pronounced by certain Commissioners appointed in the time of Charles 1. for the very purpose of effectuating a valuation of teinds throughout the kingdom, in order that proceedings might be taken subsequently for the purchase of those teinds, and for settlements to be made with the heritors in respect of them. The Commissioners were appointed expressly for this purpose, and there were sub-commissioners also appointed who should in the various districts assigned to them by the principal Commissioners proceed in effecting the valuation which of course could not be effected throughout the kingdom by the Commissioners alone. But every proceeding of the sub-commissioners had to be laid before the Commissioners themselves, and was subject to review by them, and required or might receive their approbation.
In the present case we find the decreet itself, or rather an extract from it, is dated the 28th July 1647, and it purports to be in the matter of a “summons raised at the instance of William Elliot of Stobs, heritor of the lands underwritten, against Francis Earl of Buccleuch, and Mr. William Elliot, minister of St. Marykirk, for his interest.”
Now it appears to be scarcely contended, on the part of the defenders, that it was otherwise than necessary that there should appear in proceedings of this character to have been present as parties summoned or actually attending, three persons, namely, the heritor in respect of the interest in the lands, the minister in respect of the interest which he might have in the teinds, either stipendiary or otherwise, and the titular in whom would be vested the ownership of the tithes. Here we have the summons mentioned in the first part of the decreet as bringing before the Commissioners the Earl of Buccleuch, Mr. William Elliot, the minister, and Mr. William Elliot of Stobs, the heritor. It is not stated in that early part of the decreet in what character the Earl of Buccleuch appeared; but that appears more manifestly as we proceed in reading the terms of the decreet itself. It recites, that the teinds, parsonage, and vicarage, of these lands in question, which are within the parish of St. Marykirk, are not yet valued, nor the true worth and avail thereof “dignosced,” (which, I suppose, means ascertained,) “wherefore the pursuer” (that is Mr. Elliot of Stobs, the heritor,) “is content that ane lawfull and formall valuation be made thereof, be the said Commissioners, and for that effect is willing and ready to lead and adduce ane lawfull probation of the worth of the said lands in stock and teinds, parsonage, and vicarage, and in the meantime, necessar it is that the said pursuer have warrant granted to him to lead the teinds of his said lands this instant crop and year of God 1647 years, finding caution for payment,” and so on.
Then it proceeds in this way, that the procurator of the pursuer produced an agreement underwritten, passed between the Earl of Buccleuch and the pursuer, “subscribed with their hands, whereby they have agreed” (that means fixed, I suppose) “upon the constant worth of the teinds of the lands underwritten, and desired the said Commissioners to ratify and approve
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Then the agreement itself is set out, dated 26th July 1647, whereby, “It is agreed between the Earl of Buccleuch on the one part, and Mr. William Elliot, Stobs, on the other part, that the teinds in question shall be in all time coming £210 Scots, with a certain deduction of his Majesty's ease, whereunto the said Earl of Buccleuch as tacksman, and the said William Elliot of Stobs, as heritor of the said lands, have agreed by their presents, written by (so and so), advocate, subscribed the day and year after named.” Then the rest of it, I think, is merely formal. We have, in fact, the approval of the Commissioners of this agreement so set forth. And the question is, first, What is the true construction of that agreement, independently of the question afterwards raised, as to whether or not the titular was in fact a party to the proceeding?
Now, as regards the construction of the decreet itself, I confess it appears to me, having carefully perused the several opinions given by the learned Judges in Scotland, between whom there appears to have been in many respects considerable difference of opinion, and the reasons assigned for those opinions, that it is impossible to construe this instrument as bearing ex facie any other meaning than this, that this was an arrangement come to between the heritor and the Earl of Buccleuch. We shall see presently in what capacity. As far as words go, it is an arrangement that there shall be between the heritor and the Earl of Buccleuch what is called a constant or fixed valuation of the teinds, and that that valuation shall be for all time coming, that is to say, a fixed valuation to have perpetual effect, and not to be limited in any way in its extent as far as the words go, unless we find something else on the face of the document which would induce the Court to say, that a limitation ought to be placed upon these otherwise apparently clear and explicit words. And the learned Judges who pronounced their opinions on this matter have in one or two instances pointed out, (Lord Deas particularly has done so,) that there is a marked distinction in the frame of this decreet as compared with other decreets which did affect to limit the period for which the valuation should be made, and which are expressed to be a valuation only during the time of that limited interest where a limited interest occurred, as in the case of a “tack” which would endure only during the tacksman's interest;—that where that has been intended the intention has been expressed, and certain regulations have been made in some cases with reference to payment of interest on the valuation for a limited period, the whole object and scope of these valuations in themselves being that a sale should take place as pursuant on the valuations. The primâ facie view of any decreet of this description would appear to be this, that the object of the valuation was to obtain an entire and complete valuation upon which sales could be made, though in certain cases such valuation for some reason or other could not be effected. And in such cases exceptions were made, and exception being made, it was expressed on the face of the instrument, namely, that only a limited and not a complete interest for all time coming was that which was within the purview of the Commissioners in making the decreet. I think in one instance only has anything apparently to the contrary been pointed out—I mean in the case of Easter Glens, upon which I must say a word or two presently.
The next point is, upon the face of the decreet, who appear to have been the parties to it? There can be no doubt about this. We have not the summons, and are not able therefore to say precisely who were summoned beyond those who appear on the face of the instrument; but we do find undoubtedly upon the face of the instrument an agreement set out as between the parties who were brought before the Commissioners, those parties being Mr. Elliot of Stobs, and the Earl of Buccleuch, and we have to look to the agreement, which the Commissioners affirm, to see in what character the parties who asked them to affirm the agreement appeared before them. Those who appeared before them produced an agreement, and they must be taken to have come before the Commissioners in the character in which they describe themselves in that agreement. Mr. Elliot describes himself as heritor, and the Earl of Buccleuch is described as being “tacksman and titular,” and having a right to the teinds of the parish. There is no controversy, therefore, whatsoever, that rightly or wrongly on the face of the instrument he describes himself as being both tacksman and titular, and as having a right to the teinds of the parish, and we are asked to do one of two things, either to say that that is altogether an erroneous assumption on the part of the Earl in assuming and claiming the right of titular, when in effect he was only tacksman, or what is a much more reasonable proposition arising on the face of the decreet itself to assume in reading this decreet, that this description of the Earl in the agreement means no more than that he was tacksman, and qua tacksman, was also titular. I call that the more reasonable view to suggest, because I observe, that the Lord Ordinary, in the first instance, although on the whole taking the view which the defenders have taken in this controversy, does favour in some degree
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Now, in the first place, one is struck with this observation at once, which arises upon such an argument, viz. that a double description is adopted, although it seems utterly unnecessary and superfluous in every way, if the single description was all that was intended to be effectual. The Earl of Buccleuch is described as tacksman, which would be perfectly sufficient if the pursuers were well warranted in their construction of this instrument, viz. that it was intended to be only a valuation during the period of the tack as between the heritor and the tacksman. In that case there was no necessity for any further description, and the introduction of the two terms “tacksman” and “titular” would simply amount to a description which would be in itself superfluous, the one description of “tacksman” alone being adequate to all that would be necessary for the purpose of settling the arrangement as between the heritor and the tacksman, and the introduction of the term “titular” having no effect but to introduce confusion into the argument.
But there is another reason for holding, that in this description the Earl of Buccleuch intended to describe himself as “titular,” and it is this: It has been strongly pressed upon us that for these decreets it was absolutely necessary that the titular should be present, and I think indeed that has scarcely been controverted by the defenders in their argument. A suggestion was made which prevailed to a certain extent in the minds of some of the Judges in the Court below, especially in the mind of Lord Curriehill, that although it might be necessary, or at all events proper and expedient, to have the titular present at the time of the settling of the valuation which was to affect his rights, yet the Commissioners did not act necessarily with all the same formalities when their constitution was changed by the Statute of 1707, and that, therefore, although it might be right and proper to have the titular present, it was by no means so essential as that his non-presence would vitiate a decree which might be made by the Commissioners in pursuance of their powers, regard being had to the circumstance, that they would not necessarily be called upon to act with all the formalities of a regular tribunal dispensing justice.
I confess, though I say it with all humility, after reading the able judgment of Lord Curriehill, I should, in my own judgment, strongly incline to the argument of the pursuers, that a decreet of this description could not prevail unless the persons to be affected by it were present. It is so fundamental a principle in the administration of justice, that all parties to be affected by a decree or decision come to by a tribunal should have an opportunity of appearing before it, being summoned, or should actually appear before it, that I can scarcely think it can be contended successfully, that the decreet could be upheld unless the parties interested were present.
Now construing the instrument, as it appears before us, and looking at the terms of the decreet, without looking further into the history of the case, a strong argument surely arises upon that very circumstance, that it is necessary to have the “titular” present, for holding, that the Earl of Buccleuch was that which he described himself (viz.), as being a person entitled to appear before the Commissioners, and whose appearance justified them in coming to the conclusion, that they might make a full and complete and permanent valuation. Because I proceed thus in my construction of the instrument: I say, first, taking the words of the instrument, they import a perpetual valuation for all time coming; secondly, I say, that the Lords Commissioners must have been held to have been aware of the duties imposed upon them, and the mode in which those duties ought to be carried into effect, and I must suppose them to have been fully and perfectly conscious, that they could not bind the rights of an absent party, and make a perpetual valuation as between persons who did not represent a continuing interest, and that we must therefore come to the conclusion, that they must have satisfied themselves, that they had before them the proper parties, unless it should appear manifestly and clearly upon the face of the instrument, that those parties were not present.
Now, I agree with the suggestion of the Lord Advocate in his reply, that where you have an instrument before you, purporting to be a formal and solemn instrument, as to which, from its date, you would be bound to hold all to be rightly done that was necessary to be done, the proposition of your so presuming in respect of the instrument on account of its ancient date, will not include any formalities which appear distinctly and plainly upon the face of the instrument to have been omitted. For instance, had we had the summons here containing the names of the persons who were summoned, being only two, we could not have concluded that the third person, who ought to have been present, in order to give the decreet validity, was present, however remote might have been the date of the instrument, and whatever time might have elapsed since the decreet was pronounced. You must take a formal omission in that summons, if you find that there is such an omission, as conclusive evidence that none but the persons who appear on the face of the instrument to have been summoned were there, but we have not that instrument here. We have only the decreet as it stands before us, and on that decreet we find the Earl of Buccleuch appearing before those Commissioners in the two capacities which I have described, namely, as tacksman and titular. Therefore it appears to me, that we are justified in holding, (as Lord Deas appears to have held,) that having here an extract, which is in itself
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It appears to have been a case in which a person described as John Lennox, the younger, titular and tacksman, had been setting up a variety of distinct claims in respect of those teinds, which claims had been opposed, and very vigorously opposed by Lord Strathallan. And accordingly, in consequence, apparently of this opposition of Lord Strathallan, who claimed to be titular of the teinds, but whose claim to be such titular was disputed, as appears upon the decreet, although the decreet purports to be a valuation by agreement, and it is by agreement in this case, and although that argument does speak of it as being an agreement for the true valuation, and contains rental of stock, parsonage and vicarage teinds of the said Adam, his £10 lands of Easter Glens, and speaks of it as a valuation made of a certain worth yearly, “in all time coming,” yet when that valuation is affirmed, we find in the decreet itself a reservation, which is most important, because after having said, that there is this valuation for all time coming, there is this conclusion in the decreet: “reserving the Viscount Strathallan's right, after the expiry of the tack, and prorogation, and to quarrel the agreement before the Judge Ordinary as accords of the law.” Then we find, that Viscount Strathallan has also asserted, that there was no title whatever in John Lennox in any capacity whatever to the teinds. The answer to that was—Well, he had a title, because, if he had no other title, at least he had a title as tacksman, the tack having been prorogated in the year 1618.
The result of all that controversy was this, that here was John Lennox setting up rights vigorously, which were as vigorously controverted by his opponent, Lord Strathallan, who succeeded to this extent, that the decreet, which purported to be a decreet as between the heritor and John Lennox, was nevertheless made expressly subject to all his rights to the end of the tack, and also all his rights to quarrel with or dispute the question with regard to the title of John Lennox in any way to any interest in those teinds, which were the subject of that particular controversy.
That being so, a precedent of peculiar and singular nature, being the only one which is produced in which anybody is called “tacksman and titular,” when he was tacksman only, I think, looking to the difference between that decree and this—the one reserving the rights of the third person, the titular, intact, the other being without any reservation,—the one shewing a controversy between the parties as to who was and who was not titular, the other (being the one which we are now considering) giving no indication whatever of any such controversy—that precedent tends rather to confirm them, otherwise the conclusion which one would be inclined to draw upon the face of this instrument, namely, that it was that which it purported to be, a continual valuation, for all time coming, between the parties that it purported to deal with, namely, between the heritor on the one hand, and him who was tacksman and titular on the other. Now, if there had been any doubt, that, by the law of Scotland, a person could be both tacksman and titular, the case would have been wholly different, but it has scarcely been contended before us on the part of the pursuers—and there seems to be no doubt whatever, that, by the law of Scotland, a person might fill both those positions—that a man might hold, under
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That being so on the face of the instrument, we are then invited to consider the extraneous circumstances of the time, and we are told in effect, that it was impossible that the Earl could be titular at this time, regard being had to the circumstances which existed; and it is contended, that the expression “titular” is ambiguous on the face of the decree, and that it is at least open to the pursuer to explain that description of tacksman and titular by shewing what the Earl's position really was. Now I apprehend, that extraneous circumstances cannot get rid of the description which we find in the instrument, unless we can find in those extraneous circumstances something which would induce the Earl to describe himself as that which he was not. It is not enough to shew, that there may be difficulties or doubts as to whether or not this title existed, regard being had to all the historical circumstances of the case, but there ought to be shewn something at least so clearly and completely conclusive upon the subject as to induce one to say, that it is impossible to put any other construction upon that instrument than that of his being titular, solely and entirely in his character of tacksman. Now, it does appear to me, that the circumstances in this case cannot be regarded as amounting to anything like certainty in that respect. The circumstances are very singular. I have taken a full note of them all, but I shall run through them extremely briefly, all that I mean to say being capable of being comprised in a very short compass. The circumstances alleged in the pleadings are extremely singular, inasmuch as they by no means set out a clear title in anybody whatever at this date of 1647, and the condescendence on the part of the pursuers asserts a variety of facts which are certainly of very remarkable character during that disturbed period. It begins by stating the foundation of the collegiate body of the Chapel Royal of Stirling, which seems to have been founded originally by James the Fourth of Scotland. It then proceeds to state the confirmation of the foundation of that chapel by an Act of Parliament in 1606, which declares the title to the whole of the possessions which were annexed to the Chapel Royal, but which also refers to the donation which had been made to the collegiate body by the Crown of the tithes of this parish, and numerous other parishes; and it then proceeds further to say, that the Crown, nevertheless, (which is rather a singular circumstance, after having, apparently, made a grant of the teinds in question to the Chapel Royal,) made a grant of the teinds to one Gib for a certain period, and then afterwards they were again more immediately connected with the Deanery of the Chapel Royal, and afterwards they became vested first in the Bishop of Galloway during his life, I think, and afterwards by several instruments they became vested first in the Bishop of Dunblane, and then, upon his being transferred to another district, and another bishop coming into his place, in the succeeding Bishop of Dunblane, and ultimately they became vested either in the Bishop of Dunblane as the Dean of the Chapel Royal, or in the collegiate body. But whichever view of the case may be taken, both the bishop and the collegiate body were deprived of their title, and their existence, as far as they could be deprived of it, by the proceedings which took place anterior to this valuation during the troubles which occurred in Scotland. All these proceedings afterwards were swept completely away, and, therefore, during this period, although those bodies were not recognized bodies, they were in the eyes of the law, I presume, to be taken as existing bodies holding all the rights which had been vested in them, anterior to their irregular deprivation of those rights, but the pleadings are very imperfect and uncertain in their statement of these matters, and finally, after bringing the matter down to the Restoration, when, as they say, the bishop being restored, and episcopacy being restored, and the collegiate body being restored in Scotland, one would suppose, that the former rights would be asserted to be revived, but afterwards comes this singular statement: “At the Revolution in 1688, the teinds and the old patrimony of the Chapel Royal reverted to the Crown as bona vacantia,” a very odd kind of expression—the previous condescendence having stated, that “no successor to Dr. Wedderburn in the Deanery was appointed until the restoration of the Stuart dynasty after the usurpation. From the Restoration, however, until the Revolution in 1688, and final establishment of presbytery in Scotland, the office and emoluments of Dean of the Chapel Royal were held by the successive Bishops of Dunblane during that period, after the appointment of the Bishop of Galloway in 1615 as aforesaid, and while the Deanery was held by him and his successor, the Bishop of Dunblane, the establishment as originally formed was in a great measure restored, and, in particular, prebendaries and other inferior members of the college were regularly appointed by royal presentations, and maintained out of the emoluments of the benefice.” Those two articles, although I have read them through several times, I confess, convey no clear or definite or precise idea to my mind, but only seem to me to represent, that everything was in a state of confusion during that period. The object of the representation I take to be this, to shew that everything being confused, it was not supposed that during that period the right, whatever it was, was in the Crown rather than in any one else, though that
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Now his actual title as tacksman is set out thus: that since 1606 his predecessors had had the tack of those teinds, and at the time in question, no doubt the Earl of Buccleuch had a tack which had only some 16 or 17, or possibly 20 years to run. In that state of things the valuation is made. I need hardly pause for a moment to say in addition to what I have before observed, that the terms of it being “for all time coming,” that expression, now that we are looking to the extraneous circumstances, would be still more inconsistent with the extraneous circumstances than the construction I have given, viz. that it means what the words imply, because we should have to hold, that those Commissioners, who must be supposed to have known what duties they had to perform, and what the interests were with which they were dealing, used that expression in respect of an interest of a very few years' duration subsequent to the decreet.
But then, further, the Earl being there described as titular, what is there which ought to prevent us, with reference to a decree now upwards of 200 years old, and with reference to circumstances so confused, according to the statement of the pursuers themselves, that they cannot clearly enunciate the exact title upon which the teinds were held—what is there, I say, to prevent us from applying that doctrine, which is invariably applied to instruments of long date, more especially where the enjoyment appears to have been in no way inconsistent with the instrument, viz. the presumption that all was rightly done, that all that could be in any way according to law achieved in support of the decree should be presumed to have been achieved, and that, whether you look to the parties to the suit, or whether you look at the conclusion that was come to, the parties should be presumed to be the parties which they are described to be, and the conclusion that was come to should be adjudged to be founded upon anything which can be presumed in reasonable intendment of the law to have existed as the foundation of that conclusion which was come to.
Now as regards the position of the Earl of Buccleuch, that he could be both tacksman and titular, is not disputed. Then why are we not justified in saying, that in the state of confusion which existed at this time with reference to the title, the title might, for very many good reasons which might be suggested, have been vested in him at this particular conjuncture? It might well be assumed, that those persons whose titles were in abeyance during that period, and who might have hopes of their being again revived and recognized, might make over their title to the Earl if it were only for the purpose of having this valuation, which was for the benefit of all parties, at that time carried into effect—that they might make over to the Earl all such interest as would be necessary to constitute him perfect titular for that particular purpose. There is nothing at all unreasonable in such a suggestion. Again, if it were vested in the Crown, as seems to be rather hinted or suggested than averred, there is nothing to prevent us from presuming a grant from the Crown either for that or for any other purpose which might have existed at the time, but which, owing to the remoteness of the time, we can only now presume. We cannot fathom the depths and obscurities in which the whole matter of title is involved, but we are fairly justified in presuming, that the title was given to the Earl of Buccleuch, if only for the purpose of having this complete valuation made. It appears to me, therefore, that upon the face of the decreet you have that which purports to be a complete valuation for all time upon the face of the decreet. You have all the parties to that decreet; you have the minister summoned though he does not appear, you have the heritor, and you have the person who is both tacksman and titular, and having all those parties, the valuation is made.
I do not pause for a moment to notice the question, whether or not the valuation was properly made in respect of its being an agreement, and not an actual valuation. Both the authorities in other cases which have been cited, and reason, would induce one at once to say, that there is no reason at all why, when a valuation is being made, the parties who are parties to the valuation, and the only persons interested, should not settle their own rights by determining the valuation otherwise than by formal proof. Nor is it any objection to such an arrangement, that one of the parties who may be supposed to have had some interest in such valuation, the minister, was not
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Then there arose another question, and that is the only other question to which I shall advert, as to how far the present pursuers, claiming under a title which is not the title of the person in respect of whom the decree was made, that is, not the title of the Earl of Buccleuch, are to be bound by the negative prescription in respect of this decreet. I apprehend that, taking them to have in any way knowledge of the decree, it is not necessary, with respect to the negative prescription as it would be with reference to homologation or confirmation, that they should have done any act with intent to confirm, or any act from which that intent must be presumed; but it is quite sufficient that they must be taken to have had notice of the existence of the decree; and if they had notice of the existence of the decree, then from that time, at all events, whatever other question might arise in the case, the forty years would commence running, and the negative prescription would arise.
Then had they or not notice of this decree? It appears to me that the reasons upon which Lord Deas rests his conclusion of their having had notice of the decree are unanswerable. The decree itself has so far been acted upon, that, as far as regards the Earl of Buccleuch, those who succeed him as tacksman continued from that time down to the time when the tacks, which were renewed from period to period, were finally put an end to, and during that period several proceedings took place in what is called a process of augmentation and locality with reference to the teinds. Now I apprehend it is not necessary to be shewn, that those under whom the pursuers claimed had any special interest in the matter, provided they had so much interest as to be summoned to and to be present at those various processes. Then, beginning from the year 1733, we find, in the revised statement of the defenders, a distinct averment which appears to be in no way in controversy, but is taken as established in the judgment I have referred to, that in the subsequent process of augmentation and locality, which depended in the year 1733 and previously, the said decrees of valuation, including the decree under reduction, were produced and founded on by the heritors in right thereof, and were judicially recognized and given effect to, the teinds of the lands therein contained being dealt with and localled upon as lawfully valued by the said decrees, while those heritors, who had no decrees of valuation, were held as confessed on proven rentals. The Deans of the Chapel Royal, as donatories of the Crown, were called and appeared as parties in said process, and took an active part in the proceedings and discussions which took place with regard to the state of the teind valuations.
Whether they took an active part or not, we do not know. We probably cannot now know much as to what the precise amount of activity on their part was in 1733. But the part of that statement upon which I rely is, that they appear to have been summoned, and to have appeared as parties in the process. Therefore, on various occasions—on all occasions indeed when those processes took place—the decree (which, as I ought to have observed before, had been registered,) was produced, and was acted upon.
But further than that, I think the reasoning of Lord Deas, founded upon the subsequent renewals of the tacks, is worthy of very great consideration. When a tack of this kind is renewed with an increasing rent and with an increasing grassum or charge in respect of the renewal, are we to suppose—is anybody justified in calling upon the Court to suppose—that these renewals of interest are made without any inquiry into the circumstances of the property with which the titular is about to deal. It would stand in this position: Supposing that, by reason of some question or another upon which there might be a dispute, an interest is claimed in certain lands as being held under a particular lease at a fixed value for a certain time, and that afterwards, upon the renewal of that lease, the value is to be set upon it for so many years to come, and that the landlord renews that lease from time to time, having such an agreement in respect of part of his land, and having no such agreement in respect of the rest of his land. The renewal is made,
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Therefore I apprehend it must be presumed, that persons like these titulars, in dealing with their property, must have known the fact that there was a part of it which did not bear the same proportionate value as the adjoining part of it,—that is to say, as the part of it which was not subject to the valuation, and did not bear a fixed value. The Lord Advocate in his reply entered into reasonings to shew, that they did get the whole value, as if no part of it had been held at the valuation, but the whole had been held as unvalued teind; and his contention was, that they having got the full value, we have no right to suppose that they were aware that any part was held at a less rent. Now, from what I find in the judgments of some of the Lords of Session, there appears to have been at one period a gap of some eight or ten years in which there was no tack at all existing, during which time it must have come to their knowledge whether they received the full value or not. But without founding myself upon that point, which I confess I have not been able to make out very clearly from the instruments before me, still I do find, that at various periods, when the land was re-let at an increasing value, they re-let these teinds at a fixed fine. I hold that those persons who let their land from time to time, at increasing fines, must have it presumed against them that they ascertained what the value of their property was, because upon no other principle can one understand why any increase should have been demanded, or why any difference should have been made in the grassum as well as in the rent itself.
Under those circumstances, it seems to me, that we have clear proof here of the knowledge of the existence of this valuation; and if there be proof of the knowledge of the existence of this valuation, of course the negative prescription would run, and it would be impossible to contend against the terms of this decreet, the terms of which appear to me, as I have said, to be conclusive of the controversy between the parties.
I have not given my mind to the question of confirmation or homologation, which may be a more difficult question, because the law of Scotland appears to be in that respect the same as the law of England. I apprehend that it cannot be disputed, that not only must homologation be with full knowledge of the right, but the act done must either be an act done with the intent and view to confirm the right, or an act so necessarily in its tendency evincing an intention to confirm, that that intention is inferred from the character of the act which is performed. I do not think it necessary to enter into that somewhat difficult question. It appears to me, that the decreet was effective, and that that decreet made at that distance of time has now completely bound the rights of the parties, and prevents their questioning or disputing it. Therefore I shall move your Lordships to affirm these several interlocutors.
The judgments in the Court below, when they refer to this head of judicial decision, rather run off into the conclusion that the action is barred by negative prescription. The difference is very great. Negative prescription proceeds upon the foundation of illegality, and the imperfect obligation created by the thing that is challenged, but the doctrine of presumption goes on the footing of validity, and upholds the validity that ought to be assumed by supposing that everything was present which validity required. The great principle omnia presumuntur a judice rite acta is the principle that ought to be observed, and not the ground that the thing itself is challengeable, but that the challenge is cut off and negatived by prescription.
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The proceeding in question was a quasi judicial decree in the year 1647. The original registers of these proceedings were destroyed by fire in the year 1700, but a remedial Statute was passed in 1707 which created a special register for the extracts of the decreets that had perished, and gave to those extracts when registered the same validity as the original warrants would have had. First, therefore, with regard to this decreet, the extract of which only we have, we are not to impute to it the absence of any necessary formality. We may well assume that that formality would have been found to have existed if the original decreet had been preserved, and that the absence of formality may well be accounted for by the fact that we have nothing more than an imperfect extract of that original decreet.
The first objection which is made to this decree is, that the owner of the teinds, “the titular,” as he is called in Scotland, does not appear to have been called in the proceeding. I cannot for one moment admit that this decreet is to be judged of by the same rules which may be applied to the records of judicial proceedings; neither can I admit that it is at all to be inferred that the true titular was not called in this proceeding. I mention that particularly, because, although, as I shall presently endeavour to shew, these observations are not necessary for the determination of this cause, yet I desire to have it understood that I for one should by no means be willing to accept as a conclusive objection to the validity of a decreet the fact that the charging of the titular does not appear clearly on the records of the proceedings.
But in the present case the objections that are made on this head are made on two grounds—first, upon the construction of the decreet, and, secondly, upon the objections of the agreement extrinsic to the decreet itself.
Now, first, with regard to the construction of this decreet, it is said, that it is manifest that the Earl of Buccleuch, who was the acknowledged tacksman of the teinds, was not then present in the character of titular, and that the words that occur in the agreement which is embodied in the decreet, and to which the authority of the Commissioners is interposed, must be read as stating that the Earl of Buccleuch was a party to the agreement as tacksman ex eo nomine, and not as titular. I can by no means accept any such interpretation. The words must have their simple meaning ascribed to them. Tacksman is one character and titular is another character, and the superaddition of “titular” to “tacksman” must, in conformity with every rule of construction, be held to denote, that the Earl was there present and acting in the agreement, not merely in the character of tacksman, but also in the additional character of titular. And that might well be, for it by no means follows as a proposition of Scotch law, that if a man be tacksman he cannot also be titular. That is a notion founded probably upon the notion of English lawyers, that the tack or lease would merge in the reversion, but that is by no means the rule of the Scotch law. The two legal characters and positions of ownership, of tacksman and titular, may well co-exist in one and the same person, and the identity of the legal effect of each be preserved without their being injured by being brought into contact with one another.
It is then said, that it is quite plain, that the agreement ought to be construed as an agreement of a temporary character. It is impossible so to construe it consistently with the language of the agreement. The agreement purports to be an agreement to last for all time coming. That is the character which it ascribes for itself; that is the character in which it was received by the Commissioners; that is the character and effect of the agreement to which the authority of the Commissioners and their decreet are interposed. We have, therefore, a proceeding in which this agreement was taken as an agreement to last for ever, and in that capacity it was received by the persons exercising the duty of examining it, and the duty of giving it a quasi judicial character, and with that view, as having that force and effect, they do decree that it shall have in truth that effect in all time to come.
Then we are told, that it was impossible that the Earl of Buccleuch could have been titular. And it is upon the supposed proof of that impossibility that we are called upon to reduce the agreement, and, if we do not utterly rescind it, to give it the limited construction of being an agreement of a temporary kind. That is an undertaking on the part of the pursuers which it is impossible for any man to discharge. It is impossible for the pursuers or for any man to prove, that the Earl of Buccleuch had not obtained, even if it was only pro hac vice, a grant of the titularity or a delegation from the titular to represent the titular in this proceeding. And in conformity with the principle and rule of legal construction to which I have already referred, I should have no hesitation in declaring myself under an obligation to assume, that there had been a grant of the titularity validly made to the Earl of Buccleuch, even if I were also obliged to assume, that the Earl afterwards made a surrender of that grant in order to lay a foundation for the subsequent grant which appears to have been made by the Crown. A presumption of that kind would be much less violent than other presumptions which have been made both in the law of England and in the law of Scotland, and it is a presumption which is required by the reason of the thing, and by the circumstances of the case, because if you find a proceeding which bad been accepted and fully recognized as having acquired legal validity for a period of two centuries, you are compelled by that fact to arrive at the conclusion, that the proceeding was unchallengeable, and then if you are asked to shew how it became unchallengeable there is no difficulty in
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Then it is said in addition to this, that the decree is not only bad on the grounds I have mentioned, but that it is bad also upon another ground, namely, that it did not proceed in the legal and required mode of taking evidence of the value of the teinds; in other words, that an agreement between the parties ought not to have been substituted for evidence of the value. Now this is an objection which (independently of everything else) is incapable of being made by those who do not even aver or attempt to prove, that the valuation given to the teinds by the agreement in the year 1647 was less than the actual value. The £210 per annum Scots, which is the valuation given by the agreement, is not attempted by the pursuers to be challenged on the, ground, that it was less than the actual value of the teinds. It is impossible, however, to hold, that there is any validity in this objection, because the industry of the parties has collected together a great number of instances of valuations of this description proceeding not upon testimony but upon that which supersedes testimony, namely, the agreement and confession of the parties. And it would be impossible, therefore, to hold, that a valuation founded upon agreement was not a valuation upon legitimate testimony, or resting upon that legitimate confession which is superior to the necessity of testimony.
It is unnecessary, therefore, if we take this view of the subject, namely, that the thing had validity, and must be deemed to be complete in all legal requirements, to advert to the minor ground which would exclude it from being challenged, even if it were supposed to be objectionable, but that minor ground would be quite sufficient for our determination. And, undoubtedly, it stands forth in a manner most intelligible. This decreet, as I have mentioned, was recorded under the remedial Statute of 1707 in the year 1733. That appears to have been done at the time with reference to a proceeding of locality and augmentation of stipend which took place in the year 1733. It is quite clear, that either the Crown itself, or at all events, the donatories of the Crown, were parties to that proceeding. It is abundantly clear, that the valuation itself must have been used or adverted to in that proceeding. The donatories, therefore, that is, the grantees of the titular, had in 1733 abundant proof, that this decreet of 1647 was relied upon as a living and valid thing, not as a thing that was defined or expired, but a thing which fixed the existing valuation of the teinds, and was treated by the heritors as the title deed of the heritors, by which the teinds had been conveyed to the heritors in consideration of the estate being charged with a commuted money charge instead of the teinds themselves.
There are several other proceedings of subsequent dates, all pregnant with the same conclusion. They were all occasions on which the decreet of 1647 was appealed to as a thing of force, and upon which the heritors could rely. It was therefore on those occasions brought home to the knowledge of the donatories, that there was this instrument set up against their title. And if they did not acquiesce in the meaning attributed to it, it was their bounden duty at once to challenge it. I advert to this not so much for the sake of setting up the negative prescription as for the purpose of using this conduct and these acts and this acquiescence as a confirmation of the justice and reasonableness of the great presumption which I draw, that the proceeding of 1647 had everything that was required to give it legal validity, and that therefore it ought not for one moment at this period to be attempted to be challenged or set aside.
I hope that your Lordships will, and it is most material for the interest of Scotch landowners that you should, affirm these interlocutors, and dismiss this appeal with costs.
Interlocutors complained of affirmed, and appeal dismissed with costs.
Solicitors: Appellants' Agents, J. Allan S.S.C.; Connell and Hope, Westminster.— Respondents' Agents, Mackenzie and Kermack, W.S.; Loch and Maclaurin, Westminster.