Scottish Court of Session Decisions

Subject_1 TEINDS.
Subject_2 SECT. IV.

Valuation.

Duncan Campbell of Glendaruell, Angus Fletcher of Dunans, and Others,
v.
The Officers of State and Others

Date: 4 August 1773
Case No. No. 157.

The rule of dividing a cumulo valuation of the teinds of lands in the county of Argyle, now belonging to different proprietors, fixed to be, according to the use of payment, as to those who have been in use of paying to the Minister the full valued teind, and as to those who have been paying below the valued teind, according to the merk-lands which each heritor has in property.

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The teinds of the parish of Kilmoden, or Glendaruell, and of the adjacent parishes of Innerchelane and Strachur, were valued in the year 1629 by the sub-commissioners for the Presbytery of Argyle.

With regard to the lands contained in the report of the sub-commissioners, so far as now belonging to the parties in the present question, the use of payment to the Minister, as to some of these lands, was within the value of the teind, as ascertained by the said report. This was the case as to the lands of Glendaruell, which, at the time of that valuation, belonged to the family of Argyle, and now to two of the pursuers, Duncan Campbell and Angus Fletcher. Other lands, which were valued jointly, as then belonging to one proprietor, but now split, had been in use to pay to the Minister to the full extent of the cumulo valuation. A third class of lands in the above parishes comprised in the report, and now belonging to some of the pursuers, were separately valued, and the use of payment had been agreeable to the valuation.

In these circumstances, the pursuers brought an action for obtaining approbation of the reports of the sub-commissioners, in so far as regards the teinds of their lands; and having moved the Court to approve of the report, and to divide the cumulo valuations, a doubt occurred as to the proper rule of division in this case.

Upon this point it was stated by the pursuers, That, where the use of payment out of the different lands valued in cumulo has made up the whole of the valuation, the Court have been in the practice of ascertaining the teinds of the different proprietors by this use. But as, in the present case, the quantity of teind paid out of the lands of Glendaruell falls short of the cumulo valuation in the report, the pursuers were doubtful how far the use of payment could be a rule for splitting the whole teind: That the merk-lands have been taken for the rule in a late case from that part of the country: That, in the county of Argyle, the land-tax was, till of late, proportioned among the different heritors by this rule; and that, in a like case relating to the teinds of Kintyre, where it appeared, that the family of Argyle, in feuing out lands which paid their teind jointly, had laid the teinds upon these feus in proportion to the merk-lands, the Court, while they approved of the valuation by the sub-commissioners, proportioned the teinds of the several proprietors by the same rule. These circumstances, the pursuers contended, were a sufficient ground for adopting that rule as to lands in the shire of Argyle, as not only easy and simple in itself, but agreeable to the customs of the country, which show its being generally understood, that the merk-lands, by which they are described in their old rights, bear a pretty equal proportion to the present value of estates.

The Lords decerned in the approbation of the report of the sub-commissioners of the Presbytery of Argyle, so far as concerns the valuation of the respective pursuers, their lands libelled, in common form; “and ordain the cumulo valuations to be divided among the present proprietors as follows; viz. Those who have been in use of paying the full valued teind, according to the use of payment by the several pursuers; and those who have been paying below the valued teind, according to the merk-lands which each heritor has in property.”

Act. B. W. M’Leod. Teind Clerk. Fac. Coll. No. 85. p. 213.