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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir Alexander Cuming, of Culter, Bart. v. The Moderator and Presbytery of Aberdeen, and Mr. Wm. Abercromby [1721] UKHL Robertson_364 (18 April 1721) URL: http://www.bailii.org/uk/cases/UKHL/1721/Robertson_364.html Cite as: [1721] UKHL Robertson_364 |
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Page: 364↓
(1721) Robertson 364
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Case 81.
Subject_Writ. —
A deletion, and a marginal note signed by the grantor of a deed, neither of which were noticed in the testing clause, being held to be null, the judgment is reversed.
Subject_Clause. —
A minister, who was also patron of his parish, being deprived of his benefice by the presbytery, conveys his right of patronage to a purchaser, reserving his own right as minister or preacher: the Court having found that the disponee had not, nevertheless, the right of presenting during the grantor's lifetime, the judgment is reversed.
In April 1679, Lord Torphichen conveyed the advocation, donation, right of patronage, and teinds, of the church and parish of Maryculter, in the diocese of Aberdeen, to Mr. George White, then minister of the gospel at the said church: and infeftment was thereupon taken in Mr. White's favour in October 1683.
Mr. White being libelled by the presbytery of Aberdeen, for having been guilty of scandal and treason during the late rebellion, in preaching and praying for the pretender, he was, after 55 years possession, deprived by the presbytery on the 4th of April 1717.
In August thereafter, Mr. White, by a disposition bearing to be for an onerous cause, disponed and conveyed to the appellant the aforesaid advocation, donation, right of patronage, and teinds. Part of this disposition was of the following tenor:
“Likeas I, the said Mr. George White, by these presents, sell, annailzie, and dispone from me, my heirs, and successors whatsomever, to and in favour of the said Sir Alexander Cuming, his heirs and assignees, heritably and irredeemably, but any manner of redemption, reversion, or regress for ever, all and haill the advocation, donation, and right of patronage, of the parish church of Maryculter, with the haill fruits, profits, and emoluments belonging thereto, lying within the diocese of Aberdeen, and sheriffdom of Kincardine; together with all right, title, interest, and claim of right, that I, my heirs, and successors, predecessors and authors, had, have, or any ways may have, claim, or pretend to the said right of patronage, or to the teinds, great or small, parsonage or vicarage, in any manner of way in time coming, either as titular or otherwise. Reserving always to me;” After this, as the disposition had been first engrossed, flood the following words, “ My life-rent right of the benefice of the said church during all the days of my lifetime, as not acknowledging any vacancy therein.” These words, however, were drawn through with a pen, but so as still to remain legible; and opposite to them, on the margin, was
Page: 365↓
“ To me, the said Mr. George White, all right, title, intereft, claim of right, that I can pretend as minister and preacher of the word of God in the said churchy, during all the days of my lifetime.”
This deletion and marginal note occurred three times in the disposition: the marginal note was duly signed by Mr. White, but no notice was taken of it, or of the deletion in the testing clause. Upon this disposition the appellant was infeft in September 1717.
The appellant afterwards tendered a presentation of three or four persons, or any of them that should be approved of by the presbytery and other church judicatories to serve in the said cure, and applied to the moderator of the presbytery of Aberdeen, to call a presbytery and receive his presentation. Having met with delay, he renewed his requisition to the moderator, under form of instrument by a notary public. The appellant afterwards made application to the provincial synod, to interpose their authority, and order a presbytery to meet pro re nata. But that synod having refused to do so, the presentation was again tendered to the moderator of the presbytery, and to the moderator of the synod in a full convention; and the appellant entered his protestation, that their so refusing should not prejudice his right of presentation after six months, nor give the presbtery the benefit of presenting, jure devoluto.
10 Ann. c. 12.
After the lapse of six months, the presbytery presented the respondent Mr. William Abercromby to this church and parish; and upon their presentation he was accordingly instituted. The appellant again protested against this; and afterwards brought an action of declarator before the Court of Session against the respondents, concluding that his right might be ascertained, and that the proceedings of the presbtery in presenting Mr. Abercromby might be declared void; and that the appellant might be at liberty to dispose of the intermediate profits of the living for pious uses within the said parish, in terms of the act of parliament in that behalf.
The respondents made defences stating, that the disposition was null and void, by the deletion of several clauses therein; and the marginal notes not being mentioned in the testing clause, it was to be presumed that the deed was vitiated ex post facto. That the safine also appeared to have been razed, which afforded an additional argument against the disposition. The appellant, in answer contended that it was jus tertii to the respondents to object to Mr. White's disposition; that it and the sasine could never be taken away but by improbation. And Mr. White appeared judicially in process, and declared that the deletions and marginal notes were done by his express order, and duly executed by him.
The Lord Ordinary, haying reported this matter to the whole Court, their lordships at first repelled the objection founded upon the obliteration and razure of the disposition and sasine; and found that the appellant had the right of patronage of the said church of Maryculter.
Page: 366↓
But the respondents having presented a reclaiming petition, after answers for the appellant, the Court, on the 19th day of February 1720, “sustained the defence proponed by the presbytery, and assoilzied from the declarator.”
The appellant thereupon reclaimed; and the respondents having made answers, the Court, on the 6th of December 1720, “declared the appellant's right, with this quality, that his right of presentation cannot take place during Mr. White's lifetime.”
The appellant again applied by petition against this last interlocutor, and offered to prove, by the oaths of the grantor, writer, and instrumentary witnesses, that the deletions and amendments were made by Mr. White's order before the execution of the deed: and the grantor at same time tendered his oath thereupon, and declared that he meant no more by the words deleted, or by the marginal notes added to the deed, and signed by him, than a reservation of his right as preacher and minister; but did not pretend any right to the patronage. After answers for the respondents, the Court, on the 30th of December 1720, “adhered to their interlocutor, and refused the desire of the petition.”
Entered, 23 Jan. 1710–1.
The appeal was brought from “an interlocutory sentence or decree of the Lords of Session in Scotland, of the 19th of February 1720, and from part of an interlocutor of the 6th of December, and likewise from an interlocutor of the 30th of December, 1720.”
Heads of the Appellant's Argument.
1681, c. 5.
There is no law, statute, or custom for making void any writing, by reason of any deletion, amendment, or marginal note, duly made and signed by the grantor. For all that the act of parliament, in relation to probative writs, requires, is, that the names and designations of the writer and witnesses be insert in the body of the writing, as they are in this case. And Mr. White has appeared judicially, and acknowledged the disposition, as it stands, to be a true deed simul et semel.
Neither the respondents, nor any others who were not parties nor privies to the deed, could object or sound upon the clause or reservation in favour of the grantor; none but the grantor himself or his heirs could do this; especially against his own declared will and intention. And Mr. White never pretended any right to the patronage, or to object to the appellant's presentation, having only reserved his right and interest as preacher of God's word at the said church; of which he then conceived himself unjustly deprived.
Mr. White, the grantor, neither did nor could pretend, by the clauses deleted, which now pro non scriptis habentur, nor by the clauses on the margin signed by him in place thereof, any right, even as preacher of the word of God at the said church, but such a right as he had de jure; for it was never intended, that he should reserve a right which he had not. And it is surely very improper
Page: 367↓
1592. c. 116
As the reservation of Mr. White's right as preacher of God's word, could not create any nullity in the appellant's title; so the presbytery were not judges of the validity or nullity of the disposition, which indeed they never saw nor looked upon, till the action was brought against them in the Court of Session. And therefore that could be no motive for them, in contempt of the law, and even contrary to the very act of parliament which first institutes presbetery, to reject the appellant's presentation; or an excuse for their judging at any rate of the appellants title, far less for condemning it prophetically, without seeing it.
Heads of the Respondents' Argument.
The razure is in the most matetial part of the deed, relative to the present question, which is, whether the appellant can present to this church or benefice during Mr. White's life? That entirely and solely depends upon the import of the words so razed.
Taking the words razed to have been what the appellant insists, they are a sufficient bar to his claim; for a reservation of the benefice to Mr. White during his life, will as effectually prevent the appellant from presenting during Mr. White's life, as a reservation of the right of patronage, for life; for there seems no possibility in this case to distinguish them.
Though the appellant had given evidence, as he offered to do, by Mr. White the grantor, and the instrumentary witnesses, that the razure was made, and marginal notes added, before the execution of the deed, yet that would not now supply the defect; since by the law and constant usage of Scotland the deed itself ought to have mentioned the razure to have been made, and the marginal note added before the execution, otherwise it is null; nor can that defect be supplied by witnesses.
Were evidence to be used, yet Mr. White's evidence in this case could not be admitted, for he was a party to the action, and the person for whose use it was carried on, and who, if the church could be kept vacant, would enjoy the profits of the living: and the instrumentary witnesses are likewise suspicious, since the one is son to the grantor, and the other servant to the appellant.
The appellant at first did not insist, that these alterations were made upon the deed before its execution, but only before he signed the presentation in question; and indeed it appears from the very face of the deed, that the alteration was not made before the deed was executed. For the very same razure and marginal notes that are in the disposition, are likewise in the seisin, and yet this last is dated 40 days after the first.
Taking the words, as they stand on the margin, viz. “Reserving to Mr. White all right, title, and interest, that he could pretend to as minister and preacher of God's word in the said church during all the days of his lifetime,” they are a certain
Page: 368↓
The appellant seems to be too hasty in praying that his right to present, and power to dispose of the profits during the vacancy might be declared and affirmed; for that with submission could not be done, even were the interlocutors complained of reversed; for it will still remain a question, if the appellant, (were his right of patronage established) have duly executed that right, and regularly presented. That question never was before the Court of Session, and is still open and undetermined; and so long as that remains a question, the appellant cannot pretend to have any right to dispose of the vacant stipends, because it does nor, and cannot, appear there is a vacancy, till that other question be determined.
Judgment, 18 April, 1721
After hearing counsel, It is ordered and adjudged, that the said interlocutor of the 19th of February 1720,and so much of the interlocutor of the 6th of December as is contained in these words “with this quality, that his right of presentation cannot take place during Mr. White's lifetime,” and the interlocutor of the 30th of December 1720 in affirmance thereof be reversed.
Counsel: For Appellant,
Rob. Raymond.
Tho. Kennedy.
Wm. Wynne.
For Respondent,
Ro. Dundas.
Will. Hamilton.
