Scottish Court of Session Decisions

Subject_1 TEINDS.

Gordon
v.
Dunbar

1752, July 22.
Case No. No. 33.

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This being a process for localling a stipend, it was begun, and the stipend modified, as early as 1710, and the modification extracted, but no locality insisted in till November last, and the last scheme of locality given in by the patron only in December. Kilkerran found that the locality must draw back till 1737, when the patron first withheld some of the Minister's modified stipend; and it might as well have been drawn back to 1710. Sir Robert reclaimed upon several specialties, to difference this from the common case, which, with the answers, coming this day to be advised, I mentioned a point not noticed by either party, viz. that modifications and localities at the instance of a Minister unprovided, or not sufficiently provided, were justly drawn back to the execution of the summons, and the locality, so far as the stipend exceeded the former use of payment, necessarily behoved to be drawn back. But this case was quite different. The Minister was parson and titular of the whole teinds, and till 1710 was in possession of a very good benefice by drawing the teinds, worth, as I have heard, L.150 sterling yearly; and when the patron commenced this process of modification and locality upon the 25th act 1693, to turn the Minister out of possession of the benefice, the condition of which act is, that the Minister continue in possession till the patron get a stipend modified and settled on him,—therefore the Minister should have kept the benefice till a stipend was localled; and the way the patron performed this condition was by paying the stipend himself, and thereby getting the benefice of much greater value; and as the locality could not have been drawn back had the Minister still possessed the benefice, no more can it now that the patron possesses. The Court seemed all to go into that opinion, but as that point had been overlooked, they on my motion remitted back to the Ordinary to hear the lawyers on it. 10th July 1751.

The parish of Duffus was a parsonage, and the parson in possession of drawing the teind, except as to some lands that paid rental bolls. Dunbar of Thunderton, the patron, upon the act 1693, pursued a modification and locality against the Minister, and called the heritors, and obtained decreet of modification, qualified that the Minister should continue in possession till the patron gives him an extracted decreet of modification, which he did in 1712; and from that time the patron drew the teind of Sir Robert Gordon's lands, except a part that paid rental bolls, which he allowed the Minister in part of his modified stipend, and paid the rest himself. In 1732, Sir Robert, and the tenants to whom he set the lands, began to turn the corn land into grass, but still the patron drew the teind of such corns as grew, till 1737 that the whole was turned into grass. But Sir Robert got no more rent than he drew before 1732 for the stock, when the patron drew the teind; and they continued in grass till 1744, that Sir Robert obtained a decreet valuing his teinds; and from 1737, Mr Dunbar of Newton, heir to Thunderton, retained a part of the Minister's stipend; and in 1750 he wakened the old process for localling the stipend, and gave in a scheme of locality which he made to draw back from 1737, whereas Sir Robert alleged it could have no retrospect at all. My opinion was that while the patron or titular was in possession of drawing the teind, there could be no locality upon the lands or stock, nor upon the heritors, which is agreeable to the words of the acts of Parliament from 1633 downwards, viz. that the constant local stipend could only be appointed after closing the valuation, because the heritors of the stock not in possession of the teind cannot be burdened with the stipend, and the localities are usually drawn back to the date of the aummons; and no injustice is done the heritors who are in possession of both stock and teind, that is who receive a joint rent for stock and teind, though the locality retrospect beyond the valuation of these teinds. Yet that cannot hold where the heritor is not in possession of the teind but the titular draws them, and therefore here the locality cannot retrospect till 1710, the date of the summons, because either the Minister or patron confessedly drew the teinds of his lands; and nothing new with respect to Sir Robert's right or possession of the teinds happened in 1737, except that his tenants turned their lands into grass, for still he set no more to them than the stock, and received no more rent than he formerly received for the stock. And I did not think that the tenants' turning their farms into grass could in law make any difference, or could have any influence on the question, how far the locality could retrospect. And whether the titular could have any claim of damages was a separate question. To this some of the Lords argued, if the whole heritors of a parish should turn their lands into grass, the Minister would lose his stipend. But the reply was obvious; that the law had provided an easy remedy to both Minister and titular, by pursuing a valuation; 2dly, that in this case there was abundance of teinds, either drawn or payable out of the other lands in the parish, much more than sufficient to answer the modified stipend. However, the Lords found that the locality ought to draw back to 1737, renit. tantum Kames, Murkle, et me.