Subject_1 BONA FIDE CONSUMPTION. Subject_2 SECT. I.
Bona Fide Possession of Teinds.
John Harrison Oliphant, v. David Smyth
Date: 30 November 1790 Case No. No 5.
A bona fide possessor of tiends found liable to repeat bygones accumulated by him in an adjudication, with the interest of the accumulated sum; but not the teind-duties uplisted after his decree, prior to citation in the reduction of his right.
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In 1750, the predecessor of Mr Smyth, obtained a decree against the predecessor of Mr Oliphant, for payment to him, as titular, of the teind-duties of the lands of the latter, for thirty-nine years preceding; and then deduced an adjudication against the estate for the amount, being a considerable sum.
Many years afterwards, during which period Mr Smyth continued in possession of the teinds, Mr Oliphant, in consequence of the recovery of title-deeds, shewing his right to them, prevailed in an action of reduction of the above-mentioned decrees, for payment, and of adjudication.
It came then to be a question, how far the possession on the part of Mr Smyth, which was admitted to have been bona fide held, could avail him; whether the whole sum of arrears understood as fructus percepti, or at least the annualrents of that sum as accumulated in the adjudication, should be found to belong to him; or if he was to retain only the teind-duties subsequent to the decree in his favour, which he had levied.
The Lord Ordinary “sustained the defence of bona fide possession, with regard to all bygones antecedent to the date of the first interlocutor in the process of reduction.”
This interlocutor having been brought under the review of the Court, by petition and answers, it was
Observed on the Bench:—Mr Smyth, prior to 1750, not being in possession, the bygone teind-duties then found due to him, are to be considered as one individual debt. But the condictio indebiti, as the present action really is, admits no claim for annualrents, as bona fide percepta, repetition of interest not being less due than of the principal.
“The Lords found Mr Smyth not entitled to retain the interest of the accumulated sum contained in the adjudication for the bygone teind-duties previous to the decreet 1750; and found, That the point respecting the accumulate sum in the adjudication, is a res hactenus judicata, by the final interlocutor of the Court, setting aside both the adjudication and the decreet upon which if proceeded; and that the bona fides of Mr Smyth was interrupted from the date of the citation to this action; but found, That the defence of bona fides is applicable to the teind-duties uplisted by Mr Smyth from the date of the decreet 1750, to the date of citation to this action.”
In a reclaiming petition, it was endeavoured to show, by the following authorities from the civil law, and from the law of Scotland, that a bona fide possessor is not bound to restore the interest of money indebite solutum, any more than the natural fruits of other subjects, l. 48. ff. de adquir. rer. dom.; l. 19. de her. pet.; l. 34. de usur.; l. 88. § ult. ad leg. Falc; l. 1. Cod. de condict. indeb.; Voet. ad eund. tit. § 12. Erskine, b. 2. tit. I. § 26. Dict, voce Annualrent.
But this petition was refused without answers.
Lord Ordinary, Gardenston.Act. Hay.Alt. Rolland.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 96. Fac. Col. No 153. p. 305.
