Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. I.
Bona Fide Possession of Teinds.
Smith of Methven v. Oliphant of Bachilton
Date: 8 November 1748 Case No. No 2.
Where the heritor knew the minister to be stipendiary, payment to him of the tiends did not free him at the hands of the titular from bygones.
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David Smith of, Methven, and Katharine Cochran his mother, titulars of the provostry of Methven, pursued David Oliphant of Bachilton, for the teinds of his lands due within the years of prescription, as lying within the provostry: To which it was answered, That Bachilton had paid during these years a certain quantity of victual to the minister of the parish, as the proportion of teind payable out of his lands; which payment behoved to liberate him of the superplus as to bygones, according to the, determination in the case of the Heritors of the parish of Denny.
Pleaded for the pursuers, The minister of Methven has always been a stipendiary, which the defender must have known; so that he could not bona fide imagine he was paying a modus to him, as having right to the whole teinds; the minister having obtained a decreet of modification and locality 1650, whereby the very quantities paid are localled upon the defender's lands; who also has for another purpose produced a decreet of suspension 1659, by which this appears; and the receipts taken by him from the minister, bear to be for the proportion of teind payable by him.
The case of Denny (supra), in which the opinion of the Lords was for the pursuer, though reversed by the House of Lords, differed from the present, in that there was no decreet of modification. The parson continued titular till the statute 1690, and had right to continue his possession, until the patron procured him a decreet; and his discharges bore complete payment of the teinds and vicarage.
Pleaded for the defender, He was in bona fide; and the terms of the receipts are to be understood of the proportion of the teinds or stipend of the whole parish, not of the teinds of his lands. Partial payments of this fort are presumed to have commenced upon a tack; and the defender has produced a decreet of suspension and multiplepoinding, at his predecessor's instance, against the provost and minister, mentioning a tack set to him, the duty whereof has probably been assigned to the minister. And whereas it is argued, that this suspension shewed his knowledge of the minister's not being titular, it is answered, Thai so old a document, found and produced on occasion of this process, could not interpel him in consuming the superplus teinds, after paying the modus to the minister, as he or his predecessors knew nothing of it; neither could the minister's decreet, obtained, as it bears, ‘in absence of the heritors.’
For the pursuer, The mention of a tack in a suspension, is no evidence there ever was any; but rather the contrary, as no mention is made of it at discussing.
The Lords, 8th July 1748, found the defender liable in the superplus teinds, notwithstanding the minister's receipts; and, on bill and answers, adhered.
Reporter, Kilkerran.Act. R. Craigie.Alt. Ferguson.Clerk, Murray.
Fol. Dic. v. 3. p. 96. D. Falconer, v. 2. No 4. p. 4.
See 8th December 1744, Cochran contra Oliphant, D. Falconer, v. 1. p. 23. voce Teinds; and 13th July 1748, Oliphant contra Smith, D. Falconer, v. 1. p. 367. voce Teinds.
