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Halliday of Tillibole sold the lands of Briglands, part of the barony of Tillibole, to Mr. Alexander Dunning, Minister at Abernethy, whereupon he was infeft in 1711. But as no mention of the teinds was made in the disposition to Mr. Dunning, it came to be disputed in a judicial sale of the estate of Tillibole between the creditors and Alexander Dunning his son and heir, whether the adjudications of the lands and barony of Tillibole, though posterior to the purchaser's infeftment in the lands of Briglands, did not carry the teinds as seperatum tenementum from the lands which only had been disponed.
Which being reported by the Ordinary, there was in general on controverting what the creditors pleaded on that head. Yet wherever from circumstances it appeared to have been the intention to convey the teinds, the Lords have been in use to find the teinds to be implied in the disposition of the lands; thus July 27, 1672, Scot against Muirhead, No. 31. p. 15638. teinds, though not expressed, were found implied in a disposition of lands, in respect of the following circumstances which occurred in that case, viz. That the purchaser was assigned to the tenant's tack, who paid a joint duty for stock and teind; 2do, That he was burdened with the Minister's stipend; 3tio, That the price exceeded 20 years purchase of stock and teind: And as the circumstances Were pretty similar in this case, there was little doubt made, but that the teinds were intended to be comprehended, though not expressed.
But it being suggested, that possibly the heritor of Tillibole may have been infeft in the teinds, in which case the creditors might be preferable upon their adjudications; the Lords, before proceeding to give judgment romitted to the Ordinary to enquire what the right was which Tillibole had to his teinds, whether it was an heritable right on which he stood infeft, and Whether the creditors were infeft on their adjudications.
And upon the Ordinary's again resuming the report, as there was no evidence of any such heritable right in the heritor of Tillibole, and as, though the creditors were infeft on their adjudications, their infeftment was void and null, as it bore no symbol of any kind, the Lords “found the purchaser had right to the teinds, as well as to the lands of Briglands, and that they ought to be struck out of the sale.”
Had the creditors' infeftments been ever so formal, it would not have altered the case; for as it did not appear, that the heritor of Tillibole had ever been infeft in the teinds, so the presumption was, that there never had been such infeftment, as originally teinds could not pass by infeftment, although afterwards the practice of infefting in teinds was introduced when they came to be the subject of laick feus. And if the right in Tillibole to the teinds was personal, then by the disposition of the lands supposed as above to imply the teinds, there way a consolidation, and therefore an effectual conveyance against all after adjudgers or purchasers.
