LEARMONTH v The DUKE OF HAMILTON and BRANDON (Court of Session)

Mr Learmonth and his authors possessed the teinds, in virtue of this disposition, from the date thereof down to the commencement of the present process.

The Duke of Hamilton held the titularity of these and other lands in the parish, by disposition from the Earl of Linlithgow and Callender, in 1708; but there was no evidence, which satisfied any of the judges, that the right to these teinds had ever been feudalized in the person of any of his predecessors. The question, therefore, was held to depend upon the import of the disposition to Mr Learmonth's predecessor, without reference to the omission in the warrant of his infeftment.

The Lord Ordinary pronounced the following interlocutor and note:—‘The Lord Ordinary having considered these revised objections, with the revised answers thereto, and titles produced, sustains the objections in so far as they respect the amount of the teinds of the objector's lands; but repels them in so far as they are founded on an alleged prescriptive heritable title to his teinds; and remits to the clerk to rectify the state of teinds accordingly.’

The Court ( Lord Glenlee dissenting) altered the interlocutor of the Lord Ordinary, and found that the objector had a prescriptive heritable right to the teinds of his lands.

But, secondly , this doctrine is applicable to a disposition of lands or superiorities, and the like; and it is much clearer as to teinds than to any other kind of property. The doctrine, that they may be conveyed as an accessory to land by much more equivocal expressions than are necessary to convey the lands themselves, is clearly laid down by Sir John Connell (ii. p. 426); and the three decisions referred to by him are directly applicable to such a case as the present.