Duke of Argyll v Campbell
| Jurisdiction | Scotland |
| Judgment Date | 06 February 1912 |
| Docket Number | No. 72. |
| Date | 06 February 1912 |
| Court | Court of Session |
Lord Cullen, Lord President, Lord Johnston, Lord Mackenzie, Lord Kinnear.
PrescriptionPositive PrescriptionHabile titleTitle by progressServiceCompetency of looking at prior writs to ascertain character of possession.
In an action between a superior and his vassal, the latter asserted a proprietary right in a castle situated, as he alleged, on certain lands held by him, and founded his right on possession of the castle for the prescriptive period following on a decree of special service of the lands (in which the castle was not mentioned), with their parts and pertinents, recorded in 1880.
Held (rev. judgment of Lord Cullen), that it was competent to look at the prior writs to ascertain the nature of the vassal's possession of the castle, and that, as these writs disclosed that the vassal's possession thereof was not as proprietor but as keeper for the superior, the service was not a habile title on which to found prescription; and claim for vassal repelled.
Observations on the effect of a decree of service as the foundation for a prescriptive title.
Earl of Argyll v. Laird of M'NaughtonUNK, (1671) M. 10,791, and Munro v. Munro, May 19, 1812, F. C. distinguished.
Title to HeritageWard-HoldingFortressPossession by vassal as keeper of the castleEffect of abolition of ward-holding on vassal's titleSuperior and VassalPropertyParts and PertinentsClan Act, 1747 (20 Geo. II. cap. 50).
From ancient times the lands of Pennycastle of Dunstaffnage with their parts and pertinents were held by a vassal on a ward-holding, the reddendo including (besides a feu-duty) the rendering of military services to the superior and the military guardianship of the castle of Dunstaffnage, as well as the duty of maintaining the castle fit for the residence of the superior and of rendering certain services of fuel whenever he should reside there. The property in the castle admittedly remained with the superior, but the vassal's duties as keeper of the castle involved the occupation and possession of it by him.
After the passing of the Clan Act in 1747, by which ward-holding was abolished, the military services were commuted for a money payment, but the other obligations of the vassal still continued. In 1810 the castle was burned down and was never rebuilt.
In an action between the superior and the vassal brought in 1909, the vassal asserted a right of property in the castle, and maintained that, after the passing of the Clan Act, his possession of the castle was no longer that of military keeper for the superior, but was that of proprietor.
Held that the superior was still the proprietor of the castle, in respect that the Clan Act, though abolishing military services, did not alter the proprietary rights in the subjects, and that after 1747 the vassal had continued in possession of the castle solely as keeper for the superior for the purpose of rendering the civil services enumerated in his charters.
On 21st May 1909 an action was brought by the Duke of Argyll against Angus John Campbell of Dunstaffnage, and Mrs Jane Campbell, his mother, as his curator, concluding for declarator, First, that the subjects following, videlicet, All and Whole the Castle of Dunstaffnage, with the whole houses, buildings, gardens, yards, and other enclosures and pertinents thereof lying within the lordship and barony of Lorne and county of Argyll, pertain and belong heritably in property to the pursuer; and Second, that the defender the said Angus John Campbell has no right or title of any kind in and to the said Castle of Dunstaffnage, houses, buildings, gardens, yards, and other enclosures thereof, or any of them. The summons also concluded for a decree ordaining the defender to remove from the subjects.
The pursuer averred, inter alia:(Cond. 1) The pursuer is proprietor of the lands, lordship, and barony of Lorne, under and by virtue of numerous Crown grants in favour of his predecessors and authors (Cond. 2) The defender Angus John Campbell (hereinafter referred to as the defender) is proprietor of All and Whole the lands of Pennycastle of Dunstaffnage, Penny Chenich, the one-penny land of Gannivan, the one-penny land of Pengina-phuir, the one-penny land of Garupengerie, the one-penny land of Kilmore, and the one-penny land of Davagavach, with the pertinents lying in the said lordship of Lorne, conform to extract decree of special service as eldest son and nearest and lawful heir of tailzie and provision to his father, the deceased Alexander James Henry Campbell, dated 26th, and recorded in Chancery 27th May, and in the Division of the General Register of Sasines applicable to the county of Argyll 8th June, all in the year 1908.* (Cond. 3) The Castle of Dunstaffnage forms part of the said lordship and barony of Lorne, and is situated in the immediate vicinity of the defenders' said lands. (Cond. 4) From a very early date the said castle was a royal residence and fortress, and appears to have been held for and under the Crown by persons from time to time appointed to be constables thereof. As the western mainland and islands of Scotland became more fully subject to the central power, the castle appears to have lost this special character, and to have been transferred in property to the Lords of Lorne, and to have become the principal messuage of that lordship. (Cond. 5) In the year 1470 the said lordship of Lorne was, in pursuance of a family arrangement, acquired from Walter Stewart, Lord of Lorne, by Colin, 1st Earl of Argyll, who had married one of the three daughters and co-heiresses of the deceased John Stewart, Lord of Lorne, brother and predecessor of the said Walter Stewart, Lord of Lorne. Following on a resignation by the said Walter Stewart, Lord of Lorne, the said Colin, Earl of Argyll, obtained a Crown charter of the said lordship of Lorne, dated 17th April 1470. (Cond. 6) By charter under the Great Seal, dated 14th March 154041, King James V. granted to Archibald, 4th Earl of Argyll, on his own resignation, the said lands, lordship, and barony of Lorne, along with the other lands and baronies therein specified, all by the said charter erected and incorporated into the free barony and lordship of Lorne, of which new and extended barony and lordship of Lorne the said Castle of Dunstaffnage is also ordained to be the principal messuage, as it had been of the older barony and lordship. The said castle has continued to be the principal messuage of the pursuer's said barony and lordship of Lorne, and has never been alienated or feued out to the defender or his predecessors and authors or any other person. (Cond. 7) By charter, dated 24th June 1502, Archibald, 2nd Earl of Argyll, granted in feu-farm to his beloved kinsman Alexander Campbell Kere and the heirs-male of his body, whom failing, to return to the granter and his heirs, All and Whole the lands of Pennycastell of Dunstaffniche and others, lying in the said lordship of Lorne. The reddendo of said charter included, inter alia, the safe keeping and maintenance of the granter's said Castle of Dunstaffnage, in the manner and to the extent therein set forth. (This reddendo is quoted in the Lord Ordinary's opinion, infra, p. 463.) (Cond. 8) The said lands and others appear to have been possessed in terms of the said grant by the said Alexander Campbell Kere and his heirs until the middle of the seventeenth century. During the whole of said time and subsequently the proprietor of the said lands is frequently designed as captain of the said Castle of Dunstaffnage, in like manner as other persons charged with the safe keeping of various castles belonging in property to the pursuer and his ancestors were styled captains of the said castles. In Conds. 9 and 10 reference was made to a charter of 1667, by which the 9th Earl of Argyll sold, disponed, and confirmed the subjects to one Archibald Campbell. The reddendo clause of this charter (which was in Latin) was narrated ad longum, but the English equivalent of it will be found quoted in Lord Johnston's opinion, infra, p. 494. (Cond 11.) In consequence of the passing of the Act, 20 Geo. II. cap. 50, abolishing ward-holdings,
the services specified in the said reddendo, so far as of a military character, were commuted for a money payment, and the other services and prestations continued to be exigible by the superior. (Cond. 12) In the year 1851 the defender's predecessor and author in the said lands, the now deceased Sir Angus Campbell, obtained from his superior, the pursuer's father, the late George Douglas Glassel, 8th Duke of Argyll, a precept of clare constat, in which the reddendo clause, after specifying the sums payable in name of feu-duty, proceeds as follows, viz.:Moreover, the said Sir Angus Campbell and his heirs shall be bound to open the said Castle of Dunstaffnage to the said Duke and his foresaids at all times whensoever they shall be required thereto; as also that they shall supply the said Duke and his heirs and successors annually with peats and elding for vaults and bakehouse and brewhouse and hall as often as the said Duke and his heirs shall happen to be therein. As also the said Sir Angus Campbell and his foresaids shall be bound to maintain all the houses and buildings of the said Castle of Dunstaffnage in all time coming upon their own proper charges and expenses, and whatever buildings are erected therein or shall be erected, they shall be bound to maintain in sufficient repair, the feuars and tenants of the said Duke in the lands of Lorne, which were formerly in use to supply service for the said Castle of Dunstaffnage, shall always be bound to the same services in future towards carrying all necessaries for the maintenance and repairing of the said castle as use is, and likewise the tenants of the said lands performing service at the said Castle of Dunstaffnage as often as the said Duke and his foresaids shall happen to be thereat, and when they shall be...
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