COMMENTARY: Real estate deals included chickens, crops, and clods

By Sheila Pursglove
Legal News

My son recently closed on his first house – and I’ll bet it wasn’t as entertaining as real estate deals carried out by his distant ancestors in 17th century Scotland, transactions that were sealed by the delivery of a clod of earth and a stone from the property and a sheaf of corn.

According to ancient and faded parchment documents from 1649, handed down through the generations in our family, our ancestor Thomas Tailyour and his wife Elizabeth bought a stone house, gardens, and 10 cow pastures in Coldstream, Scotland, from John Hamilton, the fourth Earl of Haddington.

Our family research – with much help from resources in Scotland – has shown the good Earl may have been selling property to raise cash, due to supporting King Charles I and his son, Charles II, in the long Civil War between the Royalists and Oliver Cromwell’s army.

A writ of clare constat and other documents, dating from 1700 and 1709, have the sixth Earl – a great promoter of the union between Scotland and England, and who served as one of 16 peers for Scotland in three British parliaments – granting the heritable property to Thomas’ son and grandson.

I can guess that my son’s mortgage documents weren’t stamped with a huge red wax seal and an Earl’s coat of arms, and weren’t written in Latin, in elegant, elaborate script, some letters requiring several pen strokes to complete.

And I can guess my son’s documents don’t begin, “In dei nomine amen per hoc pro publicum instrumentum….” – (“In the name of God, Amen, be it clearly, and by this means, a public document to all ….)

Pity the poor law clerks who wrote out these centuries-old deals – apparently 17th century law clerks paid for parchment out of their own wages, giving them a vested interest in cramming as much handwriting onto each page as possible – without modern benefits of cutting and pasting, deleting or white out.

Further complicating things, clerks usually drew readers’ attention to an abbreviated word by a short line, usually straight but sometimes curled, above the words concerned; a flourish after a letter, usually the last letter in a word; a superscript letter – usually the last letter; or a special letter or symbol such as the ampersand.
The vellum documents – an instrument of Sasine and a land charter – even have a crudely sketched map on the reverse side.

As a condition of this property deal, the Tailyours were required to grind corn at the Earl’s mill or suffer a fine of 40 shillings.

They also were obligated to provide stabling and rooms to travelers, pay a fee of 36 shillings and 8 pence at the feasts of Pentecost and Martinmas, provide chickens and crops to the Earl, and assist the Earl’s baron-baillies and chamberlains in business dealings.

They also had to participate in “watch and ward,” an early form of Neighborhood Watch. Since the Earl had problems with robbers on his lands (not to mention a “visitation of witches” that he wanted punished) that must have made for quite a challenging experience – one that my son, working in law enforcement many generations later, might appreciate.