The grant of a patronage cum decimis rectoriis et vicariis, before 1690, gives a right to the titularity of the tithes.
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An action was brought by Mr. Ogilvie, for a valuation, and also for a sale of the tithes of his lands, in the parish of Ancrum.
In this action Sir John Scot produced charters from the Crown before the year 1790, in favour of his predecessors, containing the following grant: “Una cum advocatione, donatione, et jure patronatus ecclesiæ et parochiæ de Ancrum, decimis rectoriis et vicariis ejusdem,” &c. And hence he contended, that he was titular of the tithes as well as patron of the church of Ancrum, and so entitled to nine instead of six years purchase.
In opposition to this demand, Mr. Ogilvie
Pleaded: Anciently a patron had not only the right of presenting the parochial incumbent, but a patrimonial interest in the tithes. Hence it became usual to frame rights of patronage in the terms here employed, the teinds being conveyed as well as the patronage. Still, however, the former have been considered merely as accessory to the latter, as was determined, January 4, 1749, Marquis of Annandale, No. 65. p. 15662.
It is true, that a decision apparently different was given, June 20, 1753, Spalding, No. 70. p. 15670; but, besides the circumstances which in that case tended to show, that something more than a right of patronage was intended, the words of the grant were much more comprehensive than in the present case, the right of patanage being given “cun decimis,” which seemed to indicate a conveyance of the tithes, altogether separate from and independent of the right of patronage.
A subsequent determination, January 1762; Blair against Bryce Ker, proceeded on similar grounds, Mr. Blair’s title-deeds not only giving him a right of patronage, and also the glebe, manse, and tithes of the parish, but containing a separate reddendo for these last rights.
Answered : Where a right of patronage only is intended, there is no occasion for mentioning tithes; because, so far as the patron is entitled to interpose in the administration of them, this must follow from a grant of the patronage itself. Wherever, therefore, along with a right of patronage, tithes are particularly conveyed, the just presumption is, that the grantee was to have a right of titularity as well as of patronage. But where the tithes are conveyed, as in this case, it seems scarcely possible to doubt the intention of the grant. If such an interest in the tithes only was meant, as is merely collateral and incident to a right of patronage, the grant must have been in such terms as these, “Cum advocatione parochiæ, et decimarum,” whereas the words “Cum advocatione, decimis,” &c. or “Cum decimis,” these two expressions being precisely of the same import, clearly denote a right of tithes distinct from the patronage. The latest decisions are agreeable to this reasoning; while, in the only one that can be founded on by the opposite party, the point, as appears from looking into the printed papers, seems to have undergone little or no discussion.
The Lords unanimously found, That Sir John Scot was titular as well as patron, and therefore entitled to nine years purchase of the tithes.
