The minister of a parsonage is not barred from bringing an augmentation of his stipend, by his having previously granted a tack of the teinds of the parish in favour of the patron.
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The parish of Turreff is one of the few parsonages now remaining in Scotland; and the immemorial practice has been, for the minister, before his admission,to grant a lease of the teinds, during his incumbency, to the patron, for a certain tack-duty, which, in this way, comes in reality to be the stipend of the parish.
Mr. Stewart, the present incumbent, according to the usual practice, granted such lease about twenty-five years ago, containing a clause of warrandice from fact and deed. Notwithstanding this, however, Mr. Stewart, conceiving the tack-duty payable by the lease to be an inadequate stipend, brought an action of augmentation; in defence against which, the Earl of Fife, as patron of the parish, and Mr. Aberdeen, one of the heritors,
Pleaded: A process of augmentation is competent only, where the minister is a stipendiary. Being in this case the parson of the parish, and as such, the proprietor, during his incumbency, of the whole tithes, he may injure, but he can never benefit the living, by having recourse to this process. Besides, although the action were found to be competent, it would be nugatory; as whatever augmentation he might obtain, he would be bound to communicate it to the Earl of Fife, in consequence of the warrandice in the lease.
Answered: The act 1612, Cap. 1., while it sanctions transactions similar to the present between the patron and the incumbent, does so under the express qualification, that the tack-duty shall be such as to afford the incumbent ‘a sufficent maintenance;’ and although the tack-duty, reserved by the lease in question, may at its date have been an adequate stipend, it is not so at present. As leases similar to the present are, therefore, granted under an implied condition, that the incumbent shall have a sufficient maintenance, public utility requires that the Court should enforce this condition; and it is vain for the defenders to contend, that the pursuer, by seeking an augmentation, is hurting the benefice; for if any future incumbent were, at his admission, to refuse to grant the usual lease to the patron, the latter would infallibly reduce him to the situation of a stipendiary, by bringing a modification of his stipend, in virtue of the act 1693, C. 25.
Besides, on the supposition that the reserved tack-duty is an inadequate maintenance for the minister, the lease must be regarded as a pactum illicitum, and as such can be no bar to an augmentation; 22d January 1794, Boyd against the Earl of Galloway, No. 109. p. 9583.
The Court, on the grounds stated for the pursuer, repelled the preliminary defence.
Act. W. Robertson,Alt. C. Hope.
Fac. Coll. No. 174. p. 395.
