The principal conveyed, accessories follow. Conveyance of a subject to which the disponer has no right.
Dunking v. The Creditors of Tilliboall
Date: 5 July 1748 Case No. No 12.
Disposition of lands with an assignation of all tacks conveys the teinds of the lands disponed.
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Halliday of Tilliboall disponed the lands of Briglands to Mr Alexander Dunning, minister at Abernethy, and he disponed them to Alexander his son, bookseller in Edinburgh, who was infeft therein.
A ranking and sale was pursued of the barony of Tilliboall, in which Mr Dunning appeared, and craved to have his lands, with the teinds, struck out of the sale, as he was infeft prior to the creditior's adjudication.
Answered, His lands must be struck out for the reason given, but he has no right to the teinds, much less is he infeft therein, which therefore having remained with the disponer, were affected by the adjudication of his creditors.
Replied, A disposition of lands will carry the teinds, if by circumstances it appear to have been the intention of the parties, that they should be comprehended; as if the tacks were for stock and teind, and these assigned: So upon circumstances was found, 27th February 1672, Scot against Muirhead, voce Teinds; 29th June 1698, Callendar against Carruthers, Ibidem. Here the tack of the lands in question, which was assigned, bore a duty for all other demands whatsoever, thereby excluding any claim of teind: The price was twenty-two years purchase, an adequate value, as there was no house, nor policy, on the ground; and the disposition contained an obligation to relieve from bygone stipends, without saying any thing of future ones, which were only payable out of teinds; and the teinds have been possest without quarrel from the disponer since the disposition in 1711.
Duplied, In both the decisions cited, the circumstances were much stronger than in the present case; but the material difference is, that in them the question was with the disponer or his heir, where there was room to argue from presumptions of what was intended to be disponed; but here it is with singular successors who had got a real right, which it was impossible the disponee could have on his disposition, as there was no warrant therein for an infeftment in the teinds; though it might have been sustained as a virtual disposition against the disponer, on which a title might have been completed, either by a further voluntary right, or by diligence.
On the first report, it was remitted to the Lord Ordinary to enquire in what manner the disponer's own right was constituted, and it appeared the lands and teinds of Tilliboall were erected into a barony, of which Briglands was part, and he infeft therein; on which it was hinted, that perhaps there was never an infeftment on these tiends; and so the disposition, if it were explained to comprehend them, with possession thereon, carried them without infeftment: But the determining this point was superceded; by observing a nullity in the creditors' infeftment on their adjudication of the barony, to wit, that it contained no symbol at all; so that both rights were personal.
The Lords found, That the purchaser of Briglands had a right to the teinds as well as the stock, preferable to that of the creditors’ adjudgers; and, therefore, both stock and teind ought to be struck out of the sale.
Reporter, Tinwald.For Dunning, Williamson,Alt. Scrymgeour.Clerk, Gibson.
Fol. Dic. v. 3. p. 297. D. Falconer, v. 1. No 269. p. 361.
