Scottish Court of Session Decisions

This was an action of declarator and reduction at the instance of Forbes of Haddo, against the other heritors of the parish of Inverkeithny, the Presbytery of Turriff, in which the said parish lay, the Rev. John Souter, the minister of the said parish, and George Cruickshank, farmer at Comisty, and John Ligertwood, advocate, Aberdeen, arbiter and clerk respectively, under a deed of submission which was therein sought to be reduced. The pursuer concluded (1) that it should be found and declared that the minister's glebe of the parish of Inverkeithny consisted “of the lands specified in the minutes of meeting of the Presbytery of Turriff, within which the said parish of Inverkeithny is situated, dated 15th August 1750, and which lands are therein described as follows:”—There was then inserted the description of the said glebe lands from the minutes of said meeting, which had been called for the express purpose of perambulating the same. There then followed a conclusion as to the pursuer's own property of Haddo adjoining the glebe, and one requiring the minister and presbytery to flit and remove from the same. “(2) That, if necessary, in order to give effect to the conclusions above written, decree of reduction should be pronounced, of, first, a pretended deed of submission, dated 1861, bearing to have been entered into between the defenders, the said Presbytery of Turriff and the said minister of Inverkeithny on the one part, and the pursuer on the other, whereby it was alleged that the said parties thereto submitted and referred to the defender, the said George Cruikshank, as sole arbiter, to ascertain, settle, and determine the boundaries of the said glebe of Inverkeithny. Second, a pretended decreet-arbitral, dated 22d February 1867, alleged to have been pronounced under the said submission.

In his condescendence the pursuer averred that, by the minutes of meeting of the Presbytery of Turriff in 1770, the limits of the glebe had been determined, and the boundaries accurately defined; that in consequence of the late minister, Mr Milne, having for many years been a tenant of the pursuer's authors in the farm of Dundore, on the estate of Haddo adjoining the glebe, the boundary of the glebe had been lost, and the pursuer's lands encroached upon; that for some years previous to 1860 a dispute had existed between the pursuer and the minister of the parish as to the

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boundaries of the glebe; and that in 1860 a movement had been made in the presbytery by the defender, the present minister, for the perambulation of the glebe; that thereupon it was proposed that a submission should be gone into, with a view of settling the extent and position of the glebe, &c.; that the pursuer agreed to enter into such a reference to George Cruickshank of Comisty, one of the defenders in the present action, but his consent was given on the express condition that all parties interested were to concur, and that the submission was to be obligatory on all such parties, and should result in a final and conclusive settlement of the disputes, binding on the presbytery, the minister, all the heritors of the parish, and indeed all parties concerned. That he would not have consented to enter into any submission which was to be binding on only some of said parties. The deed of submission now brought under reduction was, as stated by him, signed by the pursuer on 4th May 1861. The parties to it, besides the pursuer, are the Presbytery of Turriff and the Eev. Mr Souter, as the minister of Inverkeithny. The heritors of the parish of Inverkeithny are no parties to it, and no consent, express or implied, was ever given to it by them. They were never communicated with on the subject, and had no knowledge of the said deed. The pursuer signed said submission in the belief that the other heritors of the parish and all parties interested would also be parties to it, and that the transaction would be made binding on them; but, as already stated, the heritors have not become parties to said submission, and the pretended decreet-arbitral following thereon is in no way binding on them, nor was the patron of the parish a party to it. He further stated that, “in case it may be held that the existence of the aforesaid submission and decreet-arbitral is any bar in the way of the pursuer obtaining decree of declarator from the Court, regarding the position and extent of the glebe, and the boundary between it and his estate of Haddo, he has introduced into the summons conclusions for reducing and setting aside the said pretended submission and decreet-arbitral. And he avers that said submission is null and void, and reducible at his instance, on account of his consent thereto having been given on the condition and agreement, that it was to effect a final settlement of the said question of the boundary, and be binding on all parties concerned; whereas the other heritors of the said parish of Inverkeithny, not having become parties to the said submission, are in no way bound thereby, or by the proceedings following thereon, and particularly are not bound by the pretended decreet-arbitral, dated 22d February 1867. The said submission and decreet-arbitral, not being binding on the heritors, are null and void, and are binding on no one.”

The pursuer's pleas in law were—“(1) The extent and position of the glebe, and the boundary between it and the pursuer's estate of Haddo being as described in the conclusions of the summons, the pursuer is entitled to decree accordingly; (2) the lands adjacent to said glebe, but not included within the boundaries thereof, being part of the estate of Haddo, the pursuer, as owner thereof, is entitled to decree of removing, &c., as concluded for with reference to said lands; (3) the pretended deed of submission having been signed by the pursuer on the condition and agreement mentioned on record, and the heritors of the parish of Inverkeithny not being parties thereto, but, on the contrary, having repudiated the same, and being in no manner bound thereby, the same is not obligatory on the pursuer, and is reducible at his instance, and should be reduced accordingly; (4) the submission and decreet-arbitral are reducible in respect that the heritors, as proprietors of the school and grounds feued from the pursuer, were not parties to the proceedings, and, separatim, they are reducible in respect the other surrounding proprietors were no parties thereto.”

The defender, the Eev. Mr Souter, minister of the parish of Inverkeithny, pleaded—“(3) The declaratory conclusions of the action cannot be maintained, unless and until the said submission and decreet-arbitral shall be reduced; (4) the pursuer has not set forth any statement relevant or sufficient in law to support the reductive conclusions of the summons and, separatim, assuming that a proof of the alleged condition and understanding set forth in article 7 of the condescendence could competently be allowed, the same could not be proved otherwise than by writ, or at all events by writ or oath.