Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 TERCE.
Subject_3 No terce due from Collieries.

Mrs Francis Belcher
v.
Andrew Moffat and Charleton Palmer

Date: 30 June 1779

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[Faculty Collection, VIII. 159; Dictionary, 15,863.]

Braxfield. It is a point well established in our law, that there is no terce out of mines and minerals. The only question here arises from this, That there is a creditor having right both to the coal and the land, who is willing to hold by the coal, and to leave the land to the tercer. Thompson is a catholic creditor; he is not entitled to betake himself solely to the one subject or the other: he must draw rateably and proportionally out of both. A creditor in his situation must only rank for the annualrents: if he were preferred also for the principal sum, hard would be the case of widows, for what estate is there that may not have heritable debt on it?

Justice-Clerk. It is absurd to suppose that a lady-tercer should have right to mines and minerals, which are pars soli. I do not think that it was the intention of the law of Scotland that heritable creditors should have it in their power to draw payment of principal sums to the prejudice of the terce.

Kaimes. Thompson is certainly preferable to all the world; but I would not allow him to operate payment to the prejudice of any creditor rather than another.

Covington. The right of terce is ancient in our law, and its extent limited. The tercer may enter into possession at her own risk: if the rents fall short, she has no recourse. The death of the husband is the term of the commencement of the right of terce: this right hurts not creditors, because whoever lends his money, knows that he lends it with the risk of the terce. Nothing can impair the terce but an infeftment denuding. It is not in the option of creditors to enlarge or diminish the right of terce. Thompson's right is a right in security only; the husband could not give him a power to disappoint the right of terce.

Monboddo. I approve of Lord Covington's principles: If Thompson was to possess for payment of principal as well as interest, the widow would be secluded from her terce altogether. I do not think that a catholic creditor can draw emulously to the hurt of others. He must draw rateably and proportionally.

On the 30th June 1779, “The Lords found that the widow is not entitled to the terce of the coal; that she has right to her terce of lands out of the rent current at the husband's death, and in time coming; that half of Thompson's interest must be drawn out of the rent of the coal and half of the rent of the lands, and that the widow must draw her terce from the remainder of the rent of the lands.”

Act. T. Swinton. Alt. A. Elphinston.