A titular has no right to infeftment in the lands in security of the valued teind.
In a valuation of teinds, where the value of lands in the natural possession of the proprietor has been ascertained in money by the evidence of the witnesses adduced, the titular cannot afterwards insist that any part of the teind shall be converted into grain.
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John Scott and others are proprietors of certain lands kept by them in their own natural possession, the teinds of which belong to the College of Glasgow, who had long been in the practice of letting leases of them to the heritors for payment of a victual duty. The heritors, however, having brought processes of valuation, a proof of the rental was allowed in common form. The witnesses examined estimated the value of the lands entirely in money, without ascertaining their worth in a victual rent. When the proof was reported, it appeared that a fifth of the proved money-rent would exceed in point of value the victual teind-duty formerly paid. At this stage of the process the College insisted, 1st, That notwithstanding the money valuation, they should be found entitled at least to the accustomed quantity of victual teind, taking only the excess in money : 2dly. That the pursuers should be ordained to infeft them in the lands in security of the valued teind-duties. In support of the first point, they
Pleaded : The act 1633, C. 17. was introduced in order to remove the inconveniencies arising from the former practice of allowing the titular to draw his tithes, and as making a violent encroachment on the common law, must be strictly interpreted. It contains no provision for making teinds payable in money in place of grain, and therefore every consideration, whether drawn from their original nature, or from the purposes to which they are still subservient, seems strongly to recommend a valuation in victual in all cases where the lands are not let to tenants for a money rent, Neither should the accidental circumstances of the lands in question having been valued in money make any difference. It would have been an easy matter for the College to have desired the witnesses to say what the lands were worth yearly in victual as well as in money. And they are still willing that the valuation in money shall be converted into grain at the average of the fiars for such number of years back as the Court shall think reasonable.
Answered: It is true, that the act 1633, Chap. 17. does not enact that teind-duties shall be paid in money ; but as little does it give titulars a right to exact delivery of them in grain. But, from the express provision made in that statute for the sale of teinds at a money price ; and from its spirit and intention, which was to produce an immediate and still increasing disparity between the actual teind and the valued teind-duty, there is the strongest ground to conclude, that valued teinds were meant to be exigible only in money. At any rate, all that the college can demand is, “a fifth part of that rent which the lands are truly worth, and might have paid had they been rented to a tenant ;” Erskine, B. 2. Tit. 10. § 32. in fine. This, it is clear from the proof, they have got. But, if their present demand of converting part of the valued money-duty into victual at the fiars were granted, they would evidently get more, as the fiars are always lower than the real worth of the grain.
The Court, without any reasoning on the subject, repelled the claim.
In support of their second claim, the College
Pleaded : While the titular drew his teind-sheaves, he would take them as soon as they were ready. But when a fixed teind-duty came to be substituted in their place, he would not attend so accurately to the progress of each heritor’s harvest as to enable him to get his valued teind before the corns were removed from the ground. Accordingly, by the act 1633, Chap. 17, the heritors is ordained to “give security” for its payment. Now, by this security, nothing else can be meant but infeftment ; and so it is explained by Mackenzie, B. 2. Tit. 10. § 16.; and Erskine, B. 2. Tit. 10. § 38.
Answered : The act 1633, Chap. 17. leaves it entirely with the Commissioners of Parliament to determine what security shall be given to titulars for their valued teind-duties. It consequently still remains with the Court to make such provision in that respect as they shall judge proper. It would certainly, however, be a great and unnecessary hardship on small proprietors to be put to the expense of expeding infeftments for the security of titulars. Indeed, from the style of similar enactments in the act 1633, Chap. 19, and in the decrees-arbitral of King Charles I. it seems clear, that the Legislature never intended that the titular should be secured in this manner. See also Mackenzie’s Observations on 1633, Chap. 15. Besides, the statute 1633, Chap. 19. puts titulars and Ministers on the same footing ; so that, were the claim of the College to be sustained, the clergy might with equal justice insist for infeftment on the lands of every heritor who pays them stipend. But, in fact, neither require any additional security, as at present both are put in possession of a decree upon which they can raise every sort of diligence necessary for their safety.
It was observed on the Bench, that although this second claim seemed to derive some support from the act 1633. c. 17. yet as it appeared unnecessary, and was unprecedented, it ought not to be granted.
The Court also repelled this claim.
Act. Solicitor General, Morthland.Alt. Jo. Millar, jun. Davidson.
Fac. Coll. No. 38. p. 76.
