Scottish Court of Session Decisions

Subject_1 KIRK PATRIMONY.
Subject_2 SECT. IV.

Superiority of Kirk-lands annexed to the Crown.

Earl of Nithsdale
v.
Feuars of Holywood

Date: 14 January 1673
Case No. No 49.

Found in conformity with Preston against Ebred, No 47. p. 7976.

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The Earl of Nithsdale pursues improbation and reduction against the feuars of Holywood, and craved certification contra non producta. The defenders alleged no process, because the pursuer hath no sufficient title to reduce or improve the defenders’ rights, he being only a Lord of Erection; and by the act 10th Parliament 1633, the superiority of all the erected benefices is annexed to the Crown, and there is only reserved to the Lords of Erection the feu-duties, till they be redeemed, which cannot give them interest to reduce or improve. The pursuer answered, That by his infeftment he hath right to all the lands of the benefice which are not feued but in property, and consequently hath interest to call for production of the evidents, that it may appear what hath been property, and likewise what are the feu-duties of the lands feued; 2do, the pursuit is also at the instance of his Majesty's Advocate, who hath unquestionable interest to improve and reduce. It was replied, That the general concourse of the Advocate can give no interest for production, but only a special process at his Majesty's instance, by express warrant from his Majesty or his officers; and if upon this ground improbations be sustained, all the vassals of kirk-lands of Scotland may be so called in question. And it is known, that King Charles the first writ several letters, declaring, that he would not insist against the feuars, or ancient possessors of kirk lands.

The Lords found no process in the reduction and improbation, but declared they would suffer the pursuer to turn the same into an exhibition, that the pursuer might have inspection what the feu duties were.

Fol. Dic. v. 1. p. 530. Stair, v 2. p. 150. *** Gosford reports this case:

In an improbation pursued at the instance of the Earl of Nithsdale, as infeft in the barony of Holywood, against the vassals, it was alleged for them, That they were not obliged to take a term to produce their evidents, because the Earl's predecessors were infeft in the said barony, as Lords of Erection, and upon their submission and surrender of their superiority the same was annexed to the Crown, anno 1633, whereby all the Lords of Erection are declared to have right to the feu-duties of the vassals, ay and while they be redeemed, which can be no title to the Earl to pursue an improbation of the vassals’ evidents and rights. It was replied, That the Earl and his predecessors standing heritably infeft in the said lands, had good right to pursue an improbation against the vassals, because their right being improven, he himself will remain vassal to the King, and obtain the property; likeas the King's Advocate concurs in the pursuit, for his Majesty's interest. The Lords did sustain the defence, notwithstanding the reply, and found that the pnrsuer's title, being nothing but a right to feu-duties, he could not thereupon pursue an improbation which were of a dangerous consequence, against the whole feuars of kirk lands; but they did sustain the same as an exhibition of their charters, to the effect he might know the quantity of the feu-duties to which he had right; and found likewise, that a general concurrence of the King's Advocate was not sufficient, but that he ought to pursue an improbation at the King's instance, if he intended to question the vassals’ right.

Gosford, MS. No 554. p. 298.