Scottish Court of Session Decisions

Subject_1 TEINDS.

The Heritors of The Parish of Fogo, Competing

1739, Jan. 10.
Case No. No. 11.

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In this case, most of us agreed, that if Hutton's right to the 11 bolls teinds out of Mortonhairs lands was perpetual, then those behoved to be allocated before what we call heritable rights, that is, rights in heritors of the lands to their own teinds; but what created the great difficulty was, that the heritors' right was by the decreet-arbitral declared preferable to Mortonhall's, yet it was of its own nature redeemable, being only a right in security of a sum of money, and Mortonhall, the heritor of the lands, had undoubtedly the right of reversion. But then as the redemption money, 2700 merks, was beyond the value of the subject, we considered it in effect a perpetual right, for we had no regard to the ratification and disposition obtained from Earl Home by Mortonhall, and therefore found these 11 bolls should be allocated before the heritable rights. And as to the old stipend since this was a competition of the heritors among themselves, we found that though this was an original locality, the old stipend should be allocated according to the former use of payment; which perhaps, is the first time it was decided in these, and would not hold where all the teinds were in the titular's hands, and assigned by him in payment of stipend as he pleased. On the first point we were pretty much divided, but in the last we were pretty unanimous, except Arniston alone.