Mackintosh v. Lord Abinger and Others

Factual and Procedural Background

This case concerns an action initiated by the Plaintiff against the patrons, heritors, and minister of a parish in Inverness-shire, seeking reduction of two decrees of locality dated 1837 and 1862. The Plaintiff claimed an heritable right to the teinds (tithes) of certain lands known as Glenroy and Glenspean, founded on a conveyance dated 1766 by a predecessor, who conveyed various lands “with the teinds belonging to and on the said respective lands above disponed, and contained in the particular charters and infeftments thereof.” The Plaintiff asserted possession of the teinds under a 1772 conveyance by trustees for the prescriptive period, entitling him to declarator of heritable right.

The Defendants challenged this claim, contending that the earlier conveyances were general and referred to previous titles which did not include the teinds of the lands in question, and that the disponer himself was not infeft in the teinds. The Lord Ordinary found for the Defenders, concluding that the teinds were not conveyed and that possession was inconsistent with ownership, as the lands had been localled on the basis that there was no heritable right to the teinds and stipends had been paid accordingly. The Plaintiff reclaimed, maintaining the 1772 conveyance was a valid title for prescription, but this was ultimately rejected by the court.

Legal Issues Presented

1. Whether a general conveyance referring to previous charters and infeftments can be construed as conveying an heritable right to teinds of a particular parcel of land when it is disputed that the disponer had such a right.
2. Whether possession under the conveyance by trustees for the prescriptive period is sufficient to establish an heritable right to teinds.
3. Whether it is competent to examine earlier and subsequent titles to determine the scope of the conveyance when the conveyance is ambiguous.

Arguments of the Parties

Plaintiff's Arguments

• The 1772 conveyance by trustees is a valid title on which to base prescription of an heritable right to the teinds.
• Title to teinds is easily presumed in such cases, supported by prior case law.
• In questions of prescription, it is not competent to investigate beyond the title on which the plea of prescription is founded to question the disponer’s power to convey.
• The reference in the conveyance to earlier titles is “and contained,” implying inclusion rather than limitation, supporting the claim that the teinds were conveyed.
• There has been sufficient possession of the teinds under the trustees’ conveyance for the prescriptive period.

Defender's Arguments

• It is necessary and competent to examine previous titles, not as part of the prescriptive title but to clarify what the disponer intended to convey.
• The general conveyance is explained by subsequent titles which contain particular descriptions excluding the teinds of the lands in question.
• The disponer was not infeft in the teinds, as shown by the infeftment of the granter of the trust-deed.
• There has been no distinctive possession sufficient to establish prescription of an heritable right to the teinds.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the trust-disposition of 1766 and subsequent conveyances, noting that the dispositive clause referred only to lands “contained in the particular charters and infeftments,” indicating that the conveyance was limited to what the disponer actually owned. The court found no evidence that the disponer was infeft in the teinds of the lands in question, and subsequent titles likewise did not include the teinds. The court considered the ambiguity of the general conveyance and held it was competent to examine prior and subsequent titles to determine the extent of the conveyance.

The court also examined the state of possession, concluding that the Plaintiff and predecessors had not possessed the teinds as owners, given that the lands had been localled on the basis of no heritable right and stipends paid accordingly. The fact that the Plaintiff had not been called to pay anything to the titular but had paid a large part of the teind to the minister further suggested absence of an heritable right. Thus, the possession was inconsistent with ownership.

Accordingly, the court found that the 1766 trust-disposition and 1772 conveyance did not convey an heritable right to the teinds, and the Plaintiff’s claim based on prescription failed. The court adhered to the Lord Ordinary’s interlocutor rejecting the Plaintiff’s claim.

Holding and Implications

The court DISMISSED the Plaintiff's action to reduce the decrees of locality and for declarator of an heritable right to the teinds.

The decision confirms that a general conveyance referring to previous charters and infeftments does not carry an heritable right to teinds where the disponer was not owner of such teinds, and it is competent to examine earlier and subsequent titles to clarify the scope of the conveyance. Further, possession inconsistent with ownership and localling on the basis of no heritable right negates prescriptive claims. The ruling directly affects the parties by upholding the decrees of locality and denying the Plaintiff’s claim; no new legal precedent beyond the application of established principles was created.