Scottish Court of Session Decisions

This is an advocation from the Sheriff-Court of Lanarkshire of an action at the instance of the University of Glasgow against Mr Pollok of Rhindmuir, in the parish of Old Monkland. The summons concludes that the defender should be decerned to pay to the pursuers “the sums of teind or teind-duties after-mentioned, due and payable to the said University and College of Glasgow, as titulars of the teinds, parsonage and vicarage, of the said parish of Old Monkland, out of the lands of Rhindmuir and lands of Hole and Atkinson, all lying in the said parish of Old Monkland, of which, or of parts and portions of which lands, the said defender is proprietor, and has been since the year 1846 and previously proprietor, and, as such, has intromitted with and uplifted the stock and teind, or the rents both for stock and teind, of the said lands for the several crops and years after mentioned, viz., the sum of £10 sterling of teind-duty, being the valued teind of the said lands of Hole and Atkinson for crop and year 1847, and £1 sterling of teind duty, being the balance remaining due and unpaid by the defender of the sum of £6, 12s. sterling, being the valued teind of the said lands of Rhindmuir for the same crop and year,” There are conclusions of the same nature applicable to the subsequent years. The whole sum amounts to £198, and there is a conclusion for interest on the several sums from the term of Candlemas in each year respectively following the reaping of the corn for which said teind-duty is payable.

The pursuers make the following statements:—“(1) The pursuers are titulars of the teinds of the subdeanery of Glasgow, which includes the parishes of Old and New Monkland, with the teinds, parsonage, and vicarage, thereof; and particularly, they are titulars of the teinds of the lands of Rhindmuir and Hole and Atkinson, lying within the barony of Glasgow, and shire of Lanark; and they have been in the immemorial possession of the teinds of the said lands, in virtue of their rights and titles thereto. (2) By decree of valuation of this date, obtained at the instance of Mr Matthew Morthland, then proprietor of the whole lands of Rhindmuir, Hole, and Atkinson, the teinds of these lands were valued at the sum of £16, 12s. sterling, of which, as appears from the proven rental, on which the decree proceeded, the teind of Rhindmuir amounted to £6, 12., and the teind of Hole and Atkinson amounted to £10. (3) The lands of Rhindmuir, Hole, and Atkinson were thereafter acquired by Mr Andrew Stirling of Drumpellier; and Mr Stirling subsequently sold to Mr James Mylne, Professor of Moral Philosophy in the University of Glasgow, inter alia, ‘All and Haill these parts of the fifteen shilling land of Rhindmuir, lying on the north side of the parish road passing Swinton and Rhinds;’ item, ‘All and Haill these parts of the fifteen shilling lands of Rhinds and Rhindmuir of Hallhill, now called Rhinds.’ Mr Mylne having thus acquired only a portion of Rhindmuir, it appears to have been arranged between him and Mr Stirling that Mr Mylne should pay £5, 12s. of the valued teind applicable to Rhindmuir, and that Mr Stirling should pay the balance of £1 in addition to the sum of £10 payable for the lands of Hole and Atkinson; and this was, accordingly, the mode of payment down to the year 1846. The pursuers, however, were not parties to this arrangement, and they never entered into any agreement limiting their right to levy the whole teind-duty from the fruits of any portion of the lands, or intromitters therewith. Neither has any judicial division of the cumulo valued teind ever been obtained. (4) The defender is now, and has been ever since the year 1846, proprietor of the whole lands of Rhindmuir, valued by the foresaid decree, or of the greater part thereof. He is, and has been since 1846, also proprietor of a portion of the lands of Hole and Atkinson. As proprietor, he uplifts and intromits with the whole fruits, both stock and teind, of the lands so belonging to him, or at least the rents and profits of the same, and has done so yearly since 1846. The fruits or rents and profits of the same which the defender has so uplifted annually since 1846 far exceed in value or amount the yearly teind-duties sued for in this action. (5) The defender has paid to the pursuers and their predecessors the sum of £5, 12s. sterling annually since 1846, to account of the teind-duty payable for the lands of Rhindmuir; but he has not paid, and refuses to pay, the balance of £1 sterling per annum of teihd-duty payable for these lands; and he has not paid, and refuses to pay, theteind-dutyof £10 sterling per annum, payable for the lands of Hole and Atkinson; and Mr Stirling of Drumpellier having ever since 1846 declined to pay these sums, or any portion thereof, on the ground that, at and prior to that date, he had feued the whole lands which formerly belonged to him, and thereby entirely divested himself of the dominium utile thereof, both the said yearly sums remain unpaid and owing to the pursuers from and since crop and year 1847 inclusive, until the present time.”

The pursuers further state that before raising the present action they called upon the defender to obtain a judicial division of the cumulo valued teind of the said lands of Rhindmuir and Hole and Atkinson between himself and the other proprietors, and intimated their willingness to defer exacting teind-duties till the result of the division, but that the defender refused to do so.

The defenders maintained the following pleas:—“Acquiescences. The pursuers having since 1846 accepted from the defender £5, 12s. sterling per annum as his share of teind-duty for his lands of Rhindmuir, and granted receipts therefore, are not

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now entitled to insist against him for the additional sum of £1 per annum sued for. Teinds being debita fructuum, not fundi, the action competent to the titular for recovery of the arrears of tithe-duties is only personal against those who have intermeddled with them. The defender having intromitted with only the teinds of his own lands, he is only liable in payment of the teinds of these lands; and he having offered, and being willing to pay the same, the action ought to be dismissed. In no view can the complainer be called upon to pay the teind of lauds belonging to other proprietors, even supposing these lands to have originally belonged to the person who was also proprietor of the defender's lands, and supposing the whole to be included in a cumulo valuation.

At the debate in the inferior Court it was stated for the pursuers that, so far as the pursuers conclude for the several sums of £1, and a balance remaining due each year since the year 1846 of the valued teinds of the lands of Rhindmuir, in payment of which valued teind, the pursuers had accepted for each year of said years the sum of £5, 12s., they agreed to depart from that conclusion.

The Sheriff-substitute ( Glassford Bell) pronounced the following interlocutor:—

Repels the defences in as far as the summons concludes for the gross amount of the arrears of teind-duty payable for the lands of Hole and Atkinson from the year 1846 to the year 1864 incluive, amounting to the sum of £180, reserving to the defender his relief pro rata against the other proprietors of the other portions of said lands: Finds, as regards the conclusion for interest, that in respect the pursuers do not appear to have given the defender any notice till recently that they intended to hold him liable for the whole of said arrears, and that, if they had presented their, account or made their demand sooner, the defender might have taken steps to obtain a scheme of division, or have otherwise liberated himself, the said defender is liable in interest on said principal sum only from the date of the constitution of this action, and finds him liable accordingly: Finds, as regards the question of expenses, no expenses due to or by either party, in respect, first, of the pursuers having abandoned a part of their claim; and, second, of the nicety and novelty of the matter at issue; and decerns.”

His Lordship added the following note:—

“There seems no reason to doubt that, though this action is of an unusual character, it is within the jurisdiction of this Court; for, in the words of Mr Connell (vol. ii, p. 84, 2d ed.), ‘petitory claims for teinds may be brought either before the Court of Session or the Judge Ordinary.’ But, whilst entertaining the case, the Sheriff-substitute has had great difficulty in making up his mind regarding it. There is no decision in the books which can be referred to as a direct precedent, and the validity of the claim put forth by the pursuers must therefore be tested by general principles. It may be admitted so far for the defender that he is justified in contending that teinds being debita fructuum, not fundi, the titular has only a personal action for recovery of arrears of tithe-duties against those who have intromitted with them, and it is such personal action that has here been raised. At the same time, it is not to be overlooked that, as long as the fruits exist, the titular has an hypothec upon them (Ersk. Princ., 2, 10, 20), or, as Connell calls it, ‘a real lien;’ ‘and this lien,’ he adds, ‘subsists as to teinds which have been valued, as well as those which have not’ (vol. ii, p. 81, 2d ed.); in which doctrine he differs from Erskine, who thinks that after valuation there can be no hypothec (Ersk. Inst., 2, 10, 44). Be this, however, as it may, all writers are agreed that an action lies at the instance of the titular for arrears of tithe-duties against those who have intermeddled with them. The important and vital question is, whether the intermeddler with teinds valued in cumulo is liable only in payment of that portion of the duty which he admits to effeir to the portion of the land he has acquired, or in solidum if the fruits he has reaped exceed in value the whole duty, reserving his relief against his co-heritors? At the outset of his title on teinds, Stair says—‘teinds do affect all intromitters with the stock and teind jointly, or with the teind severally.’ Erskine says (b. 2, 10, 42), ‘Tithes, even after valuation, continue to be debita fructuum; for the valuation does no more than ascertain the value of the tithes, without altering its nature.’ ‘In virtue of his lien,’ says Connell (vol. ii, p. 442), ‘the claim of a titular extends against all persons who have reaped the fruits.’ The same writers point out ‘that the hypothecation competent to teind-masters was extended to ministers for their benefices or stipends, whereby they may have access to any intromitter with the teinds out of which the stipend is modified, not only for the intromitter's proportion of his lands, but in solidum for his whole teind, according to the value of his intromissions’ (Stair, b. 1, 13, 16). See also Connell, who says (vol. i, p. 208), ‘An intromitter with teinds was found liable to pay the minister his modified stipend in solidum for the whole quantity of his intromission if it extended to so much as would pay the minister's stipend, notwithstanding that the rest of the parish had intromitted also; and the suspender could get no relief but from the granter of his tack, who was bankrupt.’ The rule is, no doubt, different as soon as a decree of locality has followed on a decree of modification. When the stipend has been proportioned among the heritors by a decree of locality, the minister can make his claim effectual against each heritor only to the extent of the proportion localled upon him. Under a valuation of teinds, the titular is in the same position as the minister whose stipend has only been modified. When lands which have been valued as a whole are split into different parcels among different heritors, there is no splitting of the cumulo teind-duty, which remains a debt against any heritor intromitting with the fruits to the amount of the duty until a decree of division, analogous in character to a decree of locality, has been obtained. Accordingly, we find in Campbell and Others (Mor., p. 15,762), where lands which had been valued jointly to fix the amount of teind payable from them came to be split, the different heritors brought an action, in which the Court was moved to divide ‘the cumulo valuation,’ and the Court pronounced a decree of division as craved. Until such division takes place, it seems correct to hold that every part and portion of the fruits of the land is burdened with the whole valuation, in the same way as a feu-duty affects each portion of the subject. The defender took away fruits which would have more than paid the teind-duty; and if he is not liable to the pursuers in consequence, then none of his co-heritors are liable either; and how are the pursuers to recover their valuation? It is no duty of theirs to ascertain how much they are entitled to from each proprietor. They are entitled

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to receive it as an unum quid. The defender may, no doubt, have some difficulty in operating his relief; but, in the meantime, he has the pursuers’ teinds in his pocket, and he has a remedy in his hands by forcing on a division.”

The Sheriff (the late Sir A. Alison) altered, and pronounced the following interlocutor:—

“ Glasgow, 25 th May 1866.—Having heard parties' procurators at great length under their mutual appeals upon the interlocutor appealed against, and made avizandum, and considered the record and whole process, adheres to the interlocutor in so far as its holds the conclusion for the sum of £1 a-year, as a balance remaining due each year since 1846 of the valued teind of the lands of Rhindmuir, as departed from, and assoilzies the defender from said claim: And, as regards the conclusion for payment of £10 for each year since 1846 as the valued teind of the lands of Hole and Atkinson, finds that the share of the cumulo valued teind of £10 for the whole lands of Hole and Atkinson, extending to seventy acres or thereby, effeiring to the defender's portion of said lands, being fourteen acres or thereby, is admitted by the defender to amount to £2, which he professes his willingness to pay for each year since 1846—he denying only his liability for the remaining portion of the said cumulo valued teind-duty: In respect of said admission, decerns against the defender for payment of the sum of £2 sterling a-year as his admitted share of the teind-duty payable for his portion of the said lands of Hole and Atkinson from the year 1846 to 1864 inclusive, amounting to the sum of £36 in all, with bank interest at the rate of 2½ per centum per annum on each year's teind-duty, as concluded for in the libel; but, quoad ultra, finds, for the reasons stated in the following note, that the pursuers are not entitled to any farther decree against the defender in this action, and assoilzies the defender accordingly; reserving to the pursuers all competent action against any party or parties legally liable for any balance of the cumulo valued teind of £10 for the whole lands referred to not found due to them in this action: And, on the question of expenses, in respect of the difficulty of the case, and of there being no decision precisely applicable to the present question: Finds only half costs due to the defender, of which allows an account to be given in, and remits to the auditor to tax the same, and to report: And alters theinterlocutorcomplained of accordingly, and decerns.”

“ Note.—This is a very difficult and nice case, and the more so as there is no direct decision by the Court of Session bearing on the point, and the Court is left to decide it on the comparatively uncertain light to be derived from analogy or principle. These, however, seem to concur in the view which the Sheriff, after much consideration, has taken of the case, and which points to a different decision from that of the Sheriff-substitute.

The view which the Sheriff takes of the case, and which may be stated in a few sentences, is as follows. Erskine says expressly in his chapter on teinds or tithes that teinds are debita fructuum, non fundi. ‘The tithe,’ he says, ‘is a proportion only of the fruits, and is therefore debita fructuum, non fundi. Hence the arrears of tithe create no real burden or charge on the lands, and so have no operation to the prejudice of singular successors. Nor could churchmen suffer by this doctrine, for they had the same right to draw the tenth sheaf, which was their proportion of the fruits, from the several crops of which they were the product, that the owner of the lands had to the property of the residue of the stock, and so might make their right effectual without the aid of any real security; and tithes, even after valuation, continue to be debitum fructuum, for the valuation does no more than ascertain the value of the tithe, without altering its nature.’—Ersk., b. 2, tit. 10, sec. 42.

This authority appears to the Sheriff to be decisive of the whole question here at issue. As tithes are a burden on the fruits, not on the soil, it follows, as a necessary consequence, that, previous to a valuation of the teind, when tithes were drawn in kind, the titular, though he might draw every tenth sheaf, he could draw that tenth sheaf only from the land of which it was the tithe. He could not, for instanco, go into the field of A and draw every tenth sheaf, on the ground that there was an arrear of sheaves due by the adjoining proprietor B, of whose tithes he also was the titular. Each separate property must bear its own ecclesiastical burden, and cannot be saddled with any part of the burden of the neighbouring property. This is the well-known distinction between a debitum fundi and a debitum fructuum which is carried out in practice, and can lead to no other result. Erskine expressly says that this distinction between debitum fundi and debitum fructuum remains unimpaired and unaltered after the teinds have been valued; and therefore the titular must be restrained by the same rules in seeking his money payment of the teind after valuation, as he was in taking his tenth sheaf before valuation. He must take the valued teind from each heritor bound for it separately, without pretending to a solid obligation against a number of heritors taken together.

The plea on the part of the pursuers, in support of their demand against the defender for the whole valued teind, rests upon the assumption that separate heritors who have got their lands included in one decree of valuation have put themselves in a situation in which the nexus of a superior for his feu-duties, or a bondholder for the interest of his money, attached to the whole property included in the decree of valuation, or any portion of it. The obtaining a decree of valuation of teinds is a step for the benefit of the landowner; and it often proves a very great one by fixing the burden at an annual money payment not liable to be increased by any change in the value of agricultural produce. There is no room for presuming that one or more landlords, taking advantage of their right to have their teinds valued, intended to subject themselves to an obligation for their right in doing so singuli in solidum, instead of a separate obligation. Unquestionably they mean nothing of the kind. The law expressly lays it down that the teind is a burden on the fruits, not the soil; and that holds after valuation as well as before. Erskine says expressly, that the action competent to the titular for recovering the arrears of tithes is only personal against those who have intermeddled with them, whether it be the owner of the lands himself, or tenants under him.—Ersk. 2, 10, 42.

There is a well-known process in law for ascertaining in a just and equitable way the amount of the money payment of valued teind which is payable from each separate parcel of land included in a cumulo valuation, and that is, by a process of modification and locality, or division of the valued teind, which is of everyday occurrence in the Teind Court. If such a process is brought, the proportion of the valued teind payable by each heritor can at once be ascertained, and, quoad ultra, each heritor

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will be for ever free from further burden. Then, it may be asked, who is bound to bring such an action if the matter cannot be arranged extrajudicially? The Sheriff can see no reason why in such a case, more than any other, the pursuers demanding the teind should be relieved from the necessity of ascertaining and defining the extent of their claim against each heritor by the proper legal method, actori incumbet probatio. To decide otherwise, and to hold that the titulars of teinds are entitled to bring an action against any one of the heritors whose lands are included in a decree of valuation of teinds, not only for the payment of the teind effeiring to his own lands, but for the whole cumulo teind payable for the whole lands—no matter how numerous soever the heritors may be, or however large the amount of teind—leaving that heritor to adjust the matter as he best could, would be to invert altogether the legal rights of parties, and put the holder of a right which is debitum fructuum, only in the same category with those who hold a right that is debitum fundi, or obligation in solidum of any kind. The distinction is quite clear where the obligation is solid: the parties subject to it are liable to be sued singuli in solidum, and they must exercise their pro rata relief among each other. Where the obligation is several only, it lies upon the pursuer to specify and prove the aliquot portion of the burden or obligation falling upon each obligant separately.”

The pursuers advocated.