After an inhibition of teinds, the tenants continuing to pay to the person in possession, as formerly, their defence, was repelled, because there could be no presumption of bona fides after inhibittion.
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In the spuilzie pursued by the Lord Blantyre, mentioned 25th March 1628,* the Lords found a disposition made by him, who was author to the Lord Blantyre in his right of the teinds libelled, and granted for onerous causes to his creditor, before the right made to the pursuer; which disposition bears:
“That
* Durie, p. 369. voce Implied Discharge and Renunciation.
the said author disponed the said right of the teind sheaves to the excipient, to be bruiked by him, ay and while he was completely paid of the debt owing to him;”
which debt was condescended on in the said bond of disposition, and conform whereto he was in possession of the said teinds, by receiving payment of the same from the tenants, occupiers of the lands, whereout of the teinds were craved, and by giving of subaltern rights of the same to the said tenants possessors, for a certain duty to be paid therefor to him; likeas the tenants defenders compeared, and proponed this same allegeance, and alleged That they had paid to him the said teinds the year controverted, which behoved to be found sufficient to liberate the tenants who had paid bona fide to him, to whom they were in use to pay divers years before the inhibition libelled, served by the pursuer: This disposition and exception foresaid were not sustained, neither to liberate the excipients the tenants, nor him to whom the disposition was made; but the exception foresaid, founded thereupon, was repelled, because the tenants were not found to have paid bona fide for any year after inhibition; and the disposition of the teinds, ay and while the creditor to whom it was made, were paid of the sums owing to him, was not found habilis modus to the receiver, to bruik the teinds valiably against the pursuer, who was a singular successor; and the right of. itself not being set by way of tack, nor otherwise, to make the same real; but being a personal security and bond, which would only work against the maker, was not found sufficient to give him right to the teinds against the pursuer, a singular successor, as said is, especially it not being set for a certain and definite time, and so was not allowed.
