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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Locality of Kilmokack - Cameron v. Chisholm-Batten [1873] ScotLR 10_195 (16 January 1873)
URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0195.html
Cite as: [1873] ScotLR 10_195, [1873] SLR 10_195
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SCOTTISH_SLR_Court_of_Session
Page: 195↓
Court of Session Inner House Second Division.
[
v.
Facts:
Where an heritor had obtained a valuation of his teinds, but for a period of more than forty years prior to the decree of valuation had paid a sum above the amount of the valuation— held entitled to surrender the valued teind, and liable to pay no more than the valuation.
Previous to 1863 the lands of Aigas were held with the teinds unvalued. In 1817 these lands had been localled upon for stipend to the minister for £40, being one-fifth of the proven rental of the lands; and this sum was paid as stipend by the heritor for forty years afterwards. In 1863 Mrs Chisholm-Batten obtained a decree of valuation of her teinds in absence, the same being valued at £32, 2s. 6d. four-fifths per annum; and the said decree stands unreduced. For some years after the valuation the minister accepted the valued teinds, but he says he was unaware of his rights; and in 1868 he raised an action for the full sum of £40 allocated in 1817, and in this he was successful. The Court held, that notwithstanding the valuation, and notwithstanding a conditional reduction of the locality following thereon, the old locality of 1817 must subsist as a rule of payment till the settlement of a new locality.
In these circumstances a new process of augmentation, &c., was brought on 28th January 1867, in which the present final locality is being settled, and the question is for what sum Mrs Chisholm—Batten's lands should be localised upon in the final locality in this process. Mrs Chisholm-Batten has surrendered her valued teinds, and she insists that she should not be localled upon to any greater extent. The minister objects to this surrender, and maintains that in respect of prescriptive payment Mrs Chisholm-Batten must still be localised on for £40, notwithstanding the decree of valuation.
The Lord Ordinary pronounced the following interlocutor:—
“ Edinburgh, 12 th November 1872,—The Lord Ordinary having heard parties' procurators on the question between Mrs Chisholm-Batten of Aigas and her husband and the Reverend Donald Cameron, and having considered the record closed between the said parties on 24th May last, decreet of valuation founded on by Mrs Chisholm-Batten, and whole process,—Sustains the revised condescendence and surrender for the said Mrs Chisholm-Batten and her husband of the whole teinds, parsonage, and vicarage, of her whole lands, embraced in the decreet of valuation of 19th March 1863, amounting, the said valued teinds now surrendered, to the annual sum of £32, 2s. 6d. fourfifths of a penny, all conform to said decreet of valuation and revised surrender, No. 47 of process: Finds that, in respect of said lands and of the surrender of teinds now sustained, Mrs Chisholm Batten and husband fall to be allocated upon in the final locality now being made up, only for the said sum of £32, 2s. 6d. four-fifths of a penny sterling, being the valued teind of her said lands, and remits to the Clerk to rectify the loeality accordingly: Finds Mrs Chisholm-Batten and husband entitled to expenses in the present question, but subject to modification; and remits the account thereof when lodged to the Auditor of Court to tax the same, and to report.
Note.—The circumstances of this case are in some respects peculiar, and the point raised does not seem to be governed by any reported case, or by any authority precisely applicable.
Previous to 1863 the lands of Aigas and others,
Page: 196↓
In 1817, by final decree of modification and locality, these lands were localled upon for stipend to the minister to the extent of £40 per annum, which appears to have been one-fifth of the proven rental of the said lands, or rental upon which the then heritor was held confessed. This sum of £40 per annum was paid by the heritor as stipend under this decree of locality for more than forty years. At least this is the allegation of the minister, and the Lord Ordinary, for the purposes of the present judgment, holds this to be the case. He will afterwards advert to the exception founded upon the minority of former proprietors.
In 1863, however, Mrs Chisholm-Batten led a valuation of the teinds of the said lands. The present minister, who was then presentee to the parish, was called as a party to this action, but did not appear, and no appearance was made for any one. After a proof in absence, decree of valuation was pronounced in common form on 19th March 1863, valuing the whole teinds of the lands at £32, 2s. 6
So standing circumstances, the present new process of augmentation, modification, and locality was brought on 28th January 1867, in which the present final locality is now being settled, and the question is for what sum shall Mrs Chisholm-Batten's lands be localled upon in the final locality in the present process. Mrs Chisholm-Batten has raised the question quite distinctly by seeking to surrender as her valued teind the annual sum of £32, 2s. 6
The present question relates solely to the final locality, for the Lord Ordinary has already decided, by judgment dated 25th July 1872, that Mrs Chisholm-Batten must continue ad interim to pay the £40 till the final locality is settled.
Prima facie, an heritor who has obtained a valuation of his teinds is entitled to surrender the valued teind, and can be asked to pay no more than the amount of the valuation. It rests with the minister to show why Mrs Chisholm-Batten, who in 1863 had her whole teind duly valued at £32, 2s. 66
The minister accepts this onus, and founds his claim on the allegation that under the final decree of 1817, which stood unreduced till 1863, and, at at all events for a period of more than forty years, Mrs Chisholm-Batten and her predecessors paid £40 per annum, and he maintains that in virtue of the long prescription Mrs Batten must continue liable for that sum, whatever the valuation of her teinds may be. In support of his plea the minister refers to cases in which, notwithstanding old decrees of valuation, heritors have been found liable in prescriptive overpayments—the chief case being that of Madderty, 9th July 1817, F. C., 371. See this case and cases there referred to. Also Baird v. The Minister of Polmont, 3d July 1832, 10 S., 752. A judgment of the present Lord Ordinary in the Locality of Row, dated 4th July 1871, was also referred to, in which effect was given to prescriptive overpayment. In this case the present Lord Ordinary fully considered the whole question, and all the authorities, and his judgment was acquiesced in.
In all these cases, however, the prescriptive overpayments founded on followed the decree of valuation. That is to say, an heritor holding a decree of valuation of the High Court, and which therefore could not be derelinquished by overpayment, paid notwithstanding in excess of the valuation for the full prescriptive period. The Lord Ordinary, as at present advised, continues to be of opinion that the minister and benefice may by prescription obtain an indefeasible right to such overpayment, the same being in reality a payment out of stock over and above the valued teind.
It humbly appears to the Lord Ordinary, however, that such cases have no application whatever to the present case, where the alleged prescriptive overpayment did not follow upon, but proceeded, the final and unchallengeable decree of valuation.
It is indeed a mistake in the present case to say that there was any overpayment at all. The payment of the £40 a-year was not an overpayment, it was a fifth of the proven rental—that is, it was the exact amount of the unvalued teind, and it was paid as such. There was no room for maintaining overpayment until 1863, when the teinds were valued for the first time at a lower sum, and it would require 40 years' overpayment after 1863 to establish any right to overpayment in the benefice.
The action of valuation was brought for the very purpose of fixing the exact value of the teinds, and to give the heritor the right to draw his own teinds. Supposing that the teinds had been actually drawn prior to 1863, the drawn teind would always exceed in amount the valued teind, and the valuation was brought for the very purpose of reducing it to its true and actual amount.
Still farther, in a process of valuation the teind is struck at one-fifth of the net teindable rental as at the date of the valuation. Now it may very well be that the teindable rental of the lands of Aigas had fallen off between 1817 and 1863, so that while a fifth of the teindable rental in 1817 was £40, the fifth of the teindable rental in 1863 might be only £32, 2s. 66
Page: 197↓
Lastly, the Lord Ordinary thinks that the decree of 1863, being in point of fact unchallenged and unreduced, he must give effect to it in settling the final locality in the present process. It is just possible, though the Lord Ordinary does not think it likely, that 40 years' prescriptive payment prior to 1863 might have been a good defence in the valuation against the value being struck at a less amount. But this was not pleaded, and final decree of valuation was pronounced. The Lord Ordinary cannot by way of exception set aside the final decree of valuation as he is now asked to do.
The view now taken supersedes all the other questions raised on record. These questions relate chiefly to the years which must be reckoned in making up the prescriptive period, and in particular whether certain minorities are to be deducted, and whether the full sum was paid in certain other years. The question of minority is rather a difficult one, the absolute title being taken by the minor's tutors or curators in their own name, and the lands being so held by them for a time, and then conveyed to the minor. The Lord Ordinary inclines to think that as it appeared on the face of the title, though not in the dispositive clause, that the lands were really held for the minor, the exception of minority would apply. The present judgment does not, however, rest on this ground, but solely on the decree of valuation of 1863 as above explained.
The Lord Ordinary has modified the expenses awarded, on the ground that the heritor has been unsuccessful in the discussion on the interim locality, the minister having succeeded in maintaining the interim locality at £40 per annum.”
The minister reclaimed.
Authorities cited—1 Connell, 253,458; Madderty, July 9, 1817, F. C. 371; Baird, 10 S. 752; Locality of Row, July 4,1871; A. S. July 5, 1809; 1633, c. 15; Magistrates of Edinburgh v. Learmonth, 20 D. 202.
The Court adhered.
Counsel for Reclaimer— Watson and Trayner. Agents— M'Bwen & Carment, W.S.
Counsel for Respondent— Kinnear and Mackay. Agents— Murray & Falconer, W.S.