Scottish Court of Session Decisions

Sir James Grant of Grant, Grant of Glenmorriston, and Grant of Corrymony, were the sole heritors of the parish of Urquhart. Glenmorriston and Corrymony had no right to the teinds of their lands in their titles. Sir James, qua patron of the parish, was titular of the teinds, and, in 1796, he entered into a contract with Corrymony and Glenmorriston, whereby, on the narrative that the teinds had never been valued or sold, and belonged to Sir James, and that it would save expense to convey to them a right to the teinds of their respective lands, Sir James agreed to grant such right, on condition, that an augmentation then pending, and all future augmentations, should be localled on the three estates in a certain specified proportion; and he accordingly disponed to them the teinds of their respective estates, describing these by their general designations of Glenmorriston and Corrymony. This conveyance contained a precept for infeftment, but no infeftment was taken.

In 1823, Corrymony sold to Patrick Grant of Redcastle the lands of Lakefield, forming part of the estate of Corrymony. The sale was effected by the following minutes:—

“As I understand that you are disposed to sell the half davoch lands of Meikly, comprising the farms of Lakefield, Braefield, Inchvalgar, Dalmore, with mosses, muirs, and all other parts and pendicles thereof, I make you an offer for them of twelve thousand pounds sterling, including the woods growing upon these lands. With regard to the payment of the price, I shall provide by Martinmas first, 1823, what may be necessary to meet your engagements at that term, not exceeding five thousand pounds, and I shall settle the balance on or before the 15th day of May, 1824 years, upon my being put in possession of the estate at that period. The thirlage of the lands to belong to the mills of Corrymony.

“It is understood that the charge upon the property in favour of Mrs Grant, the widow of the late Major Gregor Grant, is to be provided for, by your purchasing her an annuity in some annuity office, or by your leaving in my hands a sum equivalent to her annuity. It is also understood, that any advantage accruing from the lease of the enclosed ground to the east of the Burn of Craskag, granted by the late Sir James Grant, shall go along with these lands. I am, &c.

(Signed) “ Patrick Grant.

“P.S.—I farther agree to take the live stock belonging to you on these lands at Whitsunday, and the corn crop at the proper season, by appreciation.

(Signed) “ Patrick Grant.

“To James Grant, Esq. of Corrymony.”

“I have this day received your letter of this date, respecting a purchase of the half davoch lands of Meikly; and I make answer, that having perused the terms of your offer, as expressed in that letter, I agree to the terms as therein specified. I am, &c.

(Signed) “ James Grant.

“To Patrick Grant of Redcastle, Esq.”

The disposition following on these missives made no special conveyance of the teinds, but disponed the lands, “with the mosses, muirs, and all other parts and pendicles thereof, together with the woods growing thereupon, and lying within the lordship of Urquhart, and sheriffdom of Inverness, together with all right, title, and interest, claim of right, property, and possession, petitory as well as possessory, which the said James Grant, his predecessors or authors, or heirs and successors, had, have, or can pretend to the said lands, and others above mentioned.” And it contained this clause:—“And farther, I bind and oblige myself, my heirs and successors, to free and relieve the said Patrick Grant, and his foresaids, of all cess, ministers' stipends, and all other public and parochial burdens exigible furth of the said subjects, at and preceding the term of Whitsunday, 1824, which is hereby declared to have been the term of the entry of the said Patrick Grant to the premises, notwithstanding the date hereof, they being bound to free and relieve me, and ray foresaids, of the same, thereafter, and in all time coming.” The disposition further contained a general assignation to writs and evidents, and also to rents. It was stated that the price paid was at the rate of forty-five years' purchase of the rental, including stock and teind. Patrick Grant entered into possession under this conveyance, and possessed without making payment of any teind or teind duty, or any demand being made therefor, till the year 1832, when a ranking and sale of his estate was brought, in which the respondent, Robertson, W.S., was appointed common agent. With a view to make up titles in the person of Patrick Grant, to the teinds of Lakefield, the common agent proposed to infeft him, under the unexecuted precept in Sir James Grant's conveyance thereof, on the assumption that the disposition of Lakefield by Corrymony implied a conveyance of the teinds, and, consequently, that so far as regarded Lakefield, the disposition of the teinds, with the unexecuted precept, was carried by the general assignation to writs. This was objected to by the complainer, Mansfield, in whose favour, as trustee, Corrymony had, in 1825, executed a trust-conveyance of “all and sundry lands, annualrents, tithes,” &c., belonging to him, “with the whole writs and securities of, and concerning the same,” and who, to try the question, presented a bill of suspension and interdict against Robertson expeding infeftment in favour of Patrick Grant, on Sir James's conveyance of the teinds.

In support of this bill, Mansfield contended that the mere insertion, probably per incuriam, of the clause regarding relief from stipends could never supply the want of any direct indication, either in the missives or disposition, of a conveyance to the teinds, which were held by a separate title from the lands, and had been conveyed expressly in Corrymony's trust-deed in his favour.

In answer it was pleaded—.

That the law very readily implied an intention to convey the teinds of lands alongst with the lands themselves, ¹ and that there could be no doubt of the intention here from these circumstances:—1. The clause as to minister's stipend—the being burdened with which necessarily implied that a right to the teinds was intended to be conveyed, while it was impossible to get rid of this by a gratuitous assumption that it was inserted per incuriam. 2. The price paid afforded a strong confirmatory presumption that the teinds were included. And, 3. This was farther strengthened by the fact, that no teind or teind duty had ever been demanded from Patrick Grant from the date of his purchase.