Scottish Court of Session Decisions

By deed of excambion dated in May 1882, entered into between the Earl of Seafield and the Presbytery of Abernethy, with consent and concurrence of the Reverend James Bain, minister of the parish of Duthil, on the narrative “that the said Earl of Seafield sometime ago signified to the said Reverend James Bain his desire to acquire part of the lands forming the glebe of Duthil, lying to the east and north of the churchyard, and extending to about one acre and one-half of an acre, with a view to plant and improve the said ground, which is in the immediate vicinity of the burying-ground of the family of Grant, and the said Reverend James Bain had expressed his readiness, subject to the sanction of the Presbytery of the bounds, and on receiving an equivalent therefor, to concede for the object in view the said parcels of ground, and also that the said Earl should at the same time acquire right to the ground occupied by

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the church and church-yard of the said parish to the exclusion of the right of the said Reverend James Bain and his successors in the said cure to graze with cattle or sheep the said church-yard,” the Presbytery, with consent of the Reverend James Bain, disponed to the Earl of of Seafield “All and Whole the following pieces of ground forming parts of the present glebe lands of Duthil; … as also the ground forming the churchyard of Duthil, and the site of the parish church thereof, extending to 3 roods and 1 pole or thereby; and the land occupied by the Grantown and Carr Bridge Road, so far as it traverses the said glebe of Duthil, extending to 2 roods 10 poles or thereby, making in all 3 acres and 4 poles imperial measure or thereby, all as delineated and coloured red on the foresaid plan hereto annexed, and signed as relative hereto; together with all right, title, and interest which the said Presbytery of Abernethy, or the said Reverend James Bain, or his successors in the said cure, had, have, or anywise might claim or pretend thereto in all time coming, and specially including the right of the minister of the said parish to graze with cattle or sheep the said churchyard, which right is hereby for ever renounced and discharged, the said Earl of Seafield and his foresaids being by acceptance hereof bound to cut the grass in the said churchyard, and to keep it in the order in which it has hitherto been kept by the minister.”

After the death of the Earl of Seafield, his mother, the Countess-Dowager of Seafield, who succeeded him in the estates of Seafield, proceeded to erect a mausoleum on a portion of the glebe lands conveyed, and when this building was in course of construction the Revd. Mr Bain raised an action to have the Countess interdicted from going on with the erection. The case is reported as Bain v. Lady Seafield, November 6, 1884, 22 S.L.R. 41, 12 R. 62. Interdict was refused. Thereafter the Revd. Mr Bain and the kirk-session of Duthil parish raised an action against the Countess of Seafield, the Presbytery of Abernethy, and Sir John Peter Grant of Rothiemurchus, the only other heritors in the parish, in which they sought to have the contract of excambion reduced.

The Countess-Dowager averred that “after the contract was executed the Reverend Mr Bain got possession of the portions of ground to be added to the glebe, and there was further paid to him a sum of £25 as compensation for timber on the portion of the glebe acquired by the Earl, and for fencing.” “In accepting a conveyance of the site of the church and churchyard Lord Seafield distinctly understood that it conveyed no right of property therein, but merely imposed upon him the responsibility of keeping the churchyard in order; and he never made, nor does the defender make, any claim under the conveyance. In estimating the land to be given in exchange to the minister, the extent of the church and churchyard, and also of the site of the public road, was included in the amount conveyed to Lord Seafield, and land of an equal amount was conveyed to the minister, Lord Seafield's desire being that the minister should get full value for the ground taken from the glebe. The minister thus profited by the extent of the churchyard and site of the church being included. Neither the site of the church nor the churchyard has ever in any way been interfered with by the defender, except that she has assumed the burden of keeping the churchyard in order; but she has never claimed or exercised any right of property over either the one or the other. She is quite willing and hereby offers to renounce any right purporting to be conveyed by the contract in or to the site of the church and churchyard, and to execute any deed which may be necessary to give effect thereto.”

The pursuers pleaded, inter alia—“(1) The said agreement and contract of excambion fall to be reduced, in respect it was ultra vires of the parties thereto to have entered into the same. (2) In respect the said contract of excambion conveyed to the said Earl of Seafield the site of the church and churchyard of the parish of Duthil, the same falls to be reduced.”

The Countess-Dowager pleaded—“(1) The statements of the pursuers are irrelevant. (2) The pursuer Mr Bain is barred personali exceptione from challenging the deed sought to be reduced. (3) The pursuers have not stated, and there do not exist, any grounds for reducing the deed in question.”

The Presbytery pleaded—“The present defenders assuming, but not admitting, the relevancy of the averments of the pursuers and their title and interest to sue, and that the pursuer the Reverend James Bain is not barred personali exceptione from challenging the deeds sought to be reduced, plead that, as the arrangement contained in the said deeds has been and will be beneficial to the minister and his successors in office, and to the benefice generally, the decree of reduction concluded for should not be pronounced.”

On 29th March 1887 the Lord Ordinary ( Kinnear) pronounced this interlocutor:—“Finds that the contract and deed of excambion libelled, in so far as it purports to convey to the late Earl of Seafield the ground forming the churchyard of Duthil, and the site of the parish church thereof, or any right, title, or interest which the Presbytery of Abernethy or the minister of the parish of Duthil have in the said church or churchyard, was ultra vires of the said minister and Presbytery, and was and is invalid and ineffectual; and to this extent and effect finds, declares, and reduces, in terms of the conclusions of the summons: Finds that, in other respects, the said excambion is valid and effectual to the parties, and except to the extent and effect aforesaid assoilzies the defenders, and decerns: Finds the defenders entitled to expenses, &c.

“ Opinion.—There can be no doubt that the excambion in question is invalid and ineffectual in so far as it purports to convey the churchyard and the site of the church to the late Earl of Seafield. But the defender avers that it never was intended to give the Earl a right of property in these subjects, but merely to subject him to the burden of keeping the churchyard in order; that she has neither exercised nor asserted any right of property in either the church or churchyard, and that she is ready to renounce any right in either which may be conveyed to her by the deed of excambion, and to execute any deed which may be necessary for that purpose.

“The only question therefore is, whether the conveyance of the church and churchyard is to be considered as a mere error in conveyancing,

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which may be set right without affecting the subsistence or validity of the excambion in any essential respect, or whether the contract must be reduced in toto as being altogether illegal and ineffectual.

“The pursuer maintains that the excambion must be reduced in toto on two grounds—first, because independently of the attempted conveyance of the churchyard, the sanction of the body of heritors as well as of the Presbytery is essential to the validity of an excambion of a glebe in whole or in part; and secondly, because if the conveyance of the churchyard is illegal, the entire conveyance and the contract upon which it proceeds must be set aside.

“There is no authority, so far as I know, in support of the first of these propositions. The heritors are the proper administrators of the churchyard, and there can be no effectual excambion of any part of it to which they are not parties. But they have no similar title or interest in the glebe. They are not the guardians of the benefice, and if the interests of the benefice are adequately represented by the minister in the cure and the Presbytery of the bounds, there appears to me to be no ground in law for setting aside an excambion of the glebe, otherwise unobjectionable, merely because the heritors as a body have not been parties to the transaction. Such excambions have not been uncommon, and it does not appear either from the decisions or the text-books that the consent of the heritors has ever been thought essential to their validity. It may be that the heritors other than the heritor with whom the excambion is made may have an interest to challenge a transaction which they conceive to be prejudicial to themselves or to the benefice. But a challenge on that ground must be based upon the fact of prejudice. In the present case the heritors make no complaints, and it is not suggested that they have any reason to complain. It does not appear to me that the pursuer can have any title to plead their absence as a ground for reducing an excambion to which he himself was party, with the sanction of the Presbytery of the bounds.

“The second proposition appears to me to be equally untenable. If Lord Seafield had bargained for a right of property in the churchyard, he and his representatives would have been entitled to plead that the contract must either be reduced altogether or affirmed in all its terms. But the defender does not claim to have any proprietary right in the churchyard, and is ready to renounce all such right as may appear to have been given to her by the terms of the conveyance, without demanding in return the restoration of any part of the land given by the late Earl in exchange for the glebe land which she desires to retain. The pursuer and his successors in the benefice are in no way prejudiced by the partial reduction of the excambion or by the failure of the transaction with regard to the churchyard. If he were to lose by the reduction any part of the consideration given to him or the benefice in exchange for his glebe land he might be justified in demanding that the whole transaction should be set aside. But he loses nothing. The Presbytery is satisfied that the excambion is for the advantage of the benefice, and the only consequence of the churchyard having been taken into account would appear to be that it is more advantageous than it would have been otherwise. The case of Hart v. Stewart's Trustees, 3 R. 192, upon which the pursuer relies, appears to me to be inapplicable. It was held to be incompetent to make a new contract for the parties by substituting terms which might appear to the Court to be reasonable for the terms which were actually stipulated but under essential error. But in the present case it is not proposed to make a new contract. The defender is in possession of land under a conveyance which is in part ineffectual because the minister and Presbytery have no power to convey the churchyard, but in other respects valid, because they have power to excamb glebe land. She is ready to renounce the right which she admits to be ineffectual. But it does not follow that she must also abandon the valid right which the minister and Presbytery had full power to grant, and for which she has given an adequate consideration.”

The pursuers reclaimed, and argued—(1) That this contract was bad, because the heritors were not parties to it. That this was essential, and was to be inferred from the provisions of the Glebe Lands (Scotland) Act 1866 (29 and 30 Vict. cap. 71), sec. 3, in conferring on the minister a limited power to grant leases, and of the Ecclesiastical Buildings and Glebes (Scotland) Act 1868 (31 and 32 Vict. cap. 96), sec. 3. (2) That partial reduction was incompetent—Duncan on Parochial Law, 531, note.

Argued for the respondents—(1) That there was no authority for the proposition that the heritors’ consent was essential—Connell's Parochial Law, 428, and Appdx. 97; M'Callum v. Grant, March 4, 1826, 4 S. 535; Bremner v. Officers of State, June 29, 1831, 9 S. 838; Stewart v. Lord Glenlyon, May 20, 1835, 13 S. 787; Locker by v. Stirling, June 25, 1835, 13 S. 978. The position of the heritors with respect to the site of the church and the churchyard and with respect to the glebe was quite different. It was with regard to the former only that they were proprietors in trust. (2) There was no reason why the deed should not be partially reduced in the present case. By a partial reduction the pursuers gained, for they got back part of the consideration they had given. The minister gave up nothing, for he was not entitled to pasture the churchyard, and that was all that he was deprived of. Besides, all that he was deprived of had been taken into account in arranging the terms of the contract.

At advising—