The King's College of Aberdeen v. The Earl of Kintore
Date: 8 July 1803 Case No. No. 96.
Absolute warrandice being granted by the titular to an heritor in a tack of his teinds, the titular, in the case of an augmentation, is not bound by the terms of the tack, so far as the teinds are evicted by the Minister, but is relieved from the consequences of such eviction.
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The King's College of Aberdeen is titular of the teinds of the parish of Marykirk, in which are situated the lands of Inglismaldie, belonging to the Earl of Kintore. A certain proportion of the teinds is payable to the Minister, the rest being paid to the College.
In 1785, a contract was entered into for nineteen years, by which the titular “disponed to the Earl the whole teinds payable out of these lands, consisting of 78 bolls 1 firlot 2 pecks of meal, and 35 bolls bear, with warrandice at all hands;” taking him bound, on the other hand, “to pay yearly to the Minister 10 bolls 3 firlots 312 pecks of meal, and 6 bolls and 1 firlot of bear, the victual-stipend then payable out of the lands;” and also the sum of £.605 13s. 3d. Scots to the titular, “as the agreed price and value of the residue of the foresaid victual-teind, consisting of 67 bolls 1 firlot 214 pecks of meal, and, 28 bolls 3 firlots of bear, converted at the rate of £.6 6s. Scots the boll.” Similar contracts were entered into with other heritors.
At this time it was understood, that those teinds whereof churchmen were the titulais were not subject to be modified for augmenting stipends; but, in 1788, the Minister of Marykirk having brought a claim against the College, was successful in 1794, and a proportional addition to the victual-stipend formerly paid was laid on the lands of Inglismaldie, operating back to the year 1788.
The College was compelled to pay this augmented stipend to the Minister; and, upon the principle, that so far as regarded the number of bolls evicted by the Minister, the bargain was at an end, brought an action against the Earl to be relieved from this payment, in so far as it was greater than the conversion, on account of being obliged to pay the Minister the selling price of the gram; and concluding, that the College should also be freed from this claim in future.
The Lord Ordinary (18th June, 1802,) “found, That, in the contracts founded on by the defenders, it is presumed to be the meaning of parties that the conversion of the victual-teind, at the rate of 10s. 6d. per boll, should apply only to such part thereof as was or should be payable to the College or titulars, but not to such part as was or should be payable to the Minister.”
Against this judgment the Earl reclaimed; and
Pleaded: The contract is clear; and there is no need of resorting to presumption. A certain specified number of bolls are sold for a specific price, with absolute warrandice to secure the enjoyment of the subject for the whole period of the contract. If the Minister had demanded, and obtained, from the heritor, the selling price of the victual which he has thus evicted, the heritor would have a claim against the College, upon the warrandice, for whatever was paid above the conversion. The whole subject is warranted on paying a certain price, and he is entitled to be relieved from whatever is paid beyond that.
If the titular's right be always qualified by the inherent right of the Minister, the warrandice, in such a case, should be from fact and deed only; for absolute warrandice implies, that the subject of the contract is not liable to any diminution, or at least promises relief, if such should be the case; Stair, B. 2. Tit. 3. £46. p. 234.
The contract is simple and individual. It cannot be at an end to the extent of what is paid in addition to the Minister in consequence of his augmentation, and subsist as to the free residue still to be drawn by the titular.
Answered: The subject sold is whatever belongs to the titular; for whatever belongs to the Minister the titular has' no power to dispose of. It is nothing else than the residue, or that part of the teinds which remain to the titular after paying the Minister's stipend. The quantity of grain specified is only descriptive as to the quantity then payable to the College; and stipend being an inherent burden upon mentations; Ersk. B. 2. T. 3. £12. (Small Edition); Lumisden, 6th January, 1682, voce Warrandice; Plenderleath against Lord Tweeddile, 14th January, 1800, (not reported; see Appendix). Burdens imposed by law, the purchaser is always presumed to be aware of; and if he does not obtain special warrandice in such a case, he can have no claim of relief.
The Court adhered.
Lord Ordinary, Polkemmet.Act. Walker.Agent, Wm. Walker.Alt. D. Douglas.Agent, Geo. Cumine, W. S.
Fac. Coll. No. 107. p. 236.
