Scottish Court of Session Decisions

Subject_1 TEINDS.

Spalding
v.
Heritors of Kirkmichael

1753, July 20.
Case No. No. 37.

Click here to view a pdf copy of this documet : PDF Copy

Spalding of Ashintully in 1615 got a charter from Exchequer of his lands and of the patronage of Kirkmichael, a Church which belonged to the Abbey of Dunfermline. In 1677 he got a charter from King Charles (the signature superscribed by him) on his own resignation, containing a novodamus of his lands, and the patronage of this Kirk cum decimis tam rectoriis quam vicariis ejusdem. Ashintully some years ago sold the patronage to the Duke of Athol, and disponed the bygone teinds to Spalding of Bonny-mill,—who pursues the heritors for the teinds. The defenders objected to his title both of the patronage and of the teinds, that the charter 1615 not superscribed by the King could not give the patronage unless he shewed a prior right, and the charter 1677 was obtained by obreption, and could convey no more than he had right to before; and that the teinds as part of the Abbey of Dunfermline were disponed to Queen Anne (King James VI.'s Queen) and her right ratified in Parliament and now belong to the King as succeeding to her. The pursuer founded his right to the teinds first on the charter 1677, and secondly on the acts 1690 and 1693. The case was reported by Drummore, and we agreed that the charter 1615 gave no right to the patronage, but that the novodamus in the charter 1677 gave good right to it. But the Court was divided on the other two points. I thought the clause cum decimis was but a clause of stile in a charter of patronage, that the expression might be constructed either giving patronatum ecclesæ et decimarum ejusdem, and then it would give no right to the teinds, or giving patronatum ecclesiæ et decimas ejusdem, and then it would convey the teinds, and that such clauses were inserted in Royal charters where no right of teinds was intended to be conveyed. I quoted a charter of Marquis of Annandale, mentioned in the case 16th December 1748 betwixt the Marquis and Irvine of Bonshaw,* and that it appeared plain to me they were not intended here to be conveyed, for that in the after part of the charter the patronage is with the lands erected into a barony, but not a word of the tithes. In their tenendas the patronage is mentioned but not the tithes, and the same in the dispensation for taking sasine. 2dly, I thought the acts 1690 and 1693 gave him no right, because they were lawfully disponed to Queen Anne, and though they were now in the Crown as heir to her, yet still they were no part of the benefice. That as parsons have right commonly to all the tithes in the parish, and the patron had the choice of the titular, he commonly made a bargain with him, and leaving him a sufficient stipend, took from him tacks of all the rest, so that though the right of tithes was formally in the parson, yet they were substantially in the patron. That as the patron behoved to lose this when the right of presentation was taken from him, therefore the Parliament did no more than justice in giving the patron right to the teinds so far as exceeded a competent stipend. But then they neither were in justice bound or could give him more than what belonged to the benefice, and would have belonged to the parson, and therefore they excepted teinds heritably disponed, and these teinds though now in the Crown were no more a part of the benefice than if a subject had succeeded to Queen Anne. That the act 1690 was on the same plan with the act 1649, only the expressions varied, and there the case was plain, the patron is thereby enabled to dispose of them in the same manner, as the parson and he together could have done before. That the same thing appeared by the next clause in the act 1690 touching superiorities and feu-duties, where in express words “because of the benefit the patron might have had by these feu-duties,” therefore they are given to him, but the superiorities by which he could have no benefit were given to the Crown, and by the pursuer's argument, even teinds belonging to Bishops, which were in 1690 in the Crown, would, where the Churches were patronate, belong to the patron. Justice-Clerk thought that the pursuer had no right to the teinds by the charter 1677 but that he had by the act 1693. Others thought both titles good; and it carried to sustain his title, renit tantum Kames, et me. Kilkerran did not vote, 17th January. 20th July, Adhered, wherein Kames, Kilkerran, and I agreed, because of the terms of the doquet of the signature 1678 and act of Parliament, which comprehend these teinds themselves.

* This case is thus mentioned in the manuscript notes.—In a sale of tithes, the Marquis produced a charter in 1663, of the patronage cum decimis tam rectoriis quam vicariis. The Lords found that the charter gave him no right to the tithes, where it did not appear that the Crown ever had any right to the tithes; and therefore found him only entitled to six years purchase. There had been likewise a process of modification and locality raised, and the Marquis insisted that he might retain as many teinds unsold as would free his own tithes of stipend, and as he could allocate upon the pursuers of the sale. We thought the demand reasonable; but the difficulty was, that it does not appear what stipend we shall modify, and consequently we cannot know what proportion can be allocated on these heritors; therefore we delayed further procedure till 2d Wednesday in June, that the modification and locality might come in.