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Scottish Court of Session Decisions >>
The Lord Forret v Matters. [1678] Mor 5139 (6 February 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor1205139-019.html Cite as:
[1678] Mor 5139
Question, not decided, whether hospital-lands ought to be designed before temporal-lands.
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The Lord Forret pursues reduction of a designation of a glebe to the kirk of Coults, on this reason, that there were kirk-lands in the parish, which, by the act anent glebes, ought to have been designed before temporal lands, and yet this designation was out of temporal lands now belonging to the pursuer; and condescends upon Hospital-miln, and offers to prove that it is either lands which did belong to the Trinity-College, or to an hospital, or maison de Dieu.—It was answered, That this glebe was long since designed, and the minister is decennalis et triennalis possessor, and needs not instruct his title, which is presumed omni meliori modo, as mortified or designed by the then heritors consent, and that hospital-lands were no kirk-lands.—It was replied, That though the 13 years possession presumes a title, yet præsumptio cedit veritati, and the designation is produced; 2do. The minister hath no detriment, for he and the heritor of hospital-miln are called by the Lords' warrant, who would not suffer this designation to be quarrelled till the minister might be secured in another, by calling the heritor of the other land.
The Lords found, That the minister had no prejudice, and therefore could not exclude this pursuit upon his 13 years possession; and found the reason relevant, that there were kirk-lands belonging to a collegiate kirk in the parish, and granted incident for production thereof, declaring, that if upon production the lands appeared to have been hospital-lands, the Lords would then consider, whether that hospital-lands should be designed before temporal-lands.
