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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hope v Common-Agent of Cupar [1834] CA 13_106b (28 November 1834)
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Cite as: [1834] CA 13_106b
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SCOTTISH_Shaw_Court_of_Session
Page: 106↓
v.
Subject_Teinds.—
Heritors who had tacks of their teinds, the term of which had expired, but who were still possessing by tacit relocation, held to be localled upon alongst with heritors having current tacks, and after those who had no rights to their teinds.
The minister of Cupar (Fife) obtained an augmentation in 1808. At this time two of the heritors, Mr Low and Mr Tod, held tacks of their teinds from the Crown as titular, Mr Low's being current till 1811, and Mr Tod's till 1822; and, on the expiry of the terms in their tacks, they continued to possess by tacit relocation. Before the locality in the first augmentation was arranged, a second augmentation was granted in 1830, and the schemes in both came to be made up together. Interim schemes were accordingly reported, in which Messrs Tod and Low were proposed to be localled upon in the class of heritors having tacks of their teinds. To this an objection was taken by Sir Alexander Hope, heritor of lands originally forming part of the burgh muir of Cupar, and feued out in 1751, who, (besides maintaining that he had an heritable right to his teinds on grounds altogether untenable,) contended, that the leases of Messrs Tod and Low having expired, the one in 1811 and the other 1822, these parties fell to be localled on as having no right to their teinds, inasmuch as, although in questions with the titular, their rights were the same while possessing under tacit relocation as while the tack was
To this, it was answered, that, until inhibition was used, parties whose written tacks had come to an end, but were still possessing by tacit relocation, were in all respects to be deemed tacksmen, being in no worse situation as to the temporary nature of their right than during the last year of a written tack, and that this had been decided in the case of Gibson Wright, in the locality of Kirkliston, 1 by two consecutive judgments of the Inner-House, adhering to that of the Lord Ordinary, to this effect:—And farther, that Sir Alexander Hope had truly no title to object, because, having no right to his teinds, he was liable in payment of them to the titular, if not allocated to the minister, so that it was the titular alone who could suffer by his teinds being localled on in prior order to those of Messrs Tod and Low.
On the other hand, with reference to the case of Kirkliston, founded on by the common-agent, Sir Alexander alleged, that it differed from the present in this particular, that, pending the locality, the heritor had obtained a new tack, which was not the case here, and that, in the same process, the Ordinary, who had pronounced the judgment in the question with Gibson Wright, found, by a subsequent interlocutor (in 1789), which was acquiesced in, that another heritor Wishart, whose tack had in like manner expired, but who had not obtained a renewal, was liable to be localled on as among those who had no rights to their teinds. *
The Lord Ordinary repelled the objections, and approved of the scheme of locality as made up, adding the subjoined note. †
Sir Alexander Hope reclaimed, but
The Court adhered.
Solicitors: James Hope, W. S.— John Gowan, W. S.—Agents.
_________________ Footnote _________________
1 Dec. 17, 1788 (F. C.)
* In the appendix to the session papers will be found excerpts from the pleadings and interlocutors in these two questions in the Kirkliston locality.
† “It seems plain that the objector has produced nothing which can be regarded as an heritable right to his teinds.
“Upon the other point, the second decision, in the case of Kirkliston (that with Wishart, in March, 1789), occasions some difficulty: But the Lord Ordinary does not think that the authority of that judgment, pronounced after very little discussion, and never submitted to the Inner-House, can outweigh that of the solemn decision of 19th December, 1788, or admit of being reconciled with it, by the supposition, that the last mentioned decision proceeded upon the ground of the tack having been renewed pendente lite, and the right of the tacksman having been sustained entirely on that renewal. The case is reported, and seems to have been argued throughout upon the effect of tacit relocation alone, which this hypothesis would exclude from consideration; and the judgment expressly bears, that ‘as Mr G. Wright possessed his teinds by tacit relocation, when the process of augmentation was raised, he must be considered as a tacksman of the teinds at the time, and that his case cannot be assimilated to that of an heritor, having no right to his teinds when a process is raised, and merely obtaining a tack of them after the augmentation was granted.’ This judgment was twice adhered to by the Court, the second reclaiming petition being refused without answers; and it is reported, at the distance of several years thereafter, without the least apparent suspicion on the part of the learned reporters, that its authority had been destroyed by a subsequent judgment of the Lord Ordinary in the same process, in March, 1789.
“The reported judgment seems also to be in accordance with the principles of the law of tacit relocation, which have been always recognised as equally applicable to cases of teinds as of other subjects, and effect seems to have been deliberately given to these principles in the very recent case of St Cyrus, 25th Hay, 1827.
“Both the tacks objected to were current for years after the first augmentation in 1808.”