Scottish Court of Session Decisions

In a locality of the united parishes of Auchtergaven and Logiebride objections were raised for the Earl of Mansfield and General R. R. Robertson, heritable proprietors of certain teinds in the parish of Auchtergaven, and for the Rev. D. Winter, minister of the united parishes, against Sir A. D. Stewart of Grandtully, as heritable proprietor of the teinds of the lands of Nether Obney and Over Obney in the parish of Auchtergaven. The common agent in his rectified state had

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omitted to local upon these teinds, and the objectors averred that they never had been valued, and should therefore be localled on pari passu with their own.

The respondent averred that these teinds had been valued, and produced as evidence of the fact a report by Sub-commissioners of the presbytery of Dunkeld in 1629–35, which was afterwards approved of by the High Commission on 3d February 1796, and which contained the following paragraphs:—“Findis be the declaratioun and vpgiving of Sir Williame Stewart of Grantullie, Knight, that his landis of Obneyes, lyand within the barronie of Murthlie and parochin of Auchtergavine foirsaid, with the viccarage teindis of the saidis landis, hes payit, presentlie payes, and may pay, in constant rent, stok and viccarage teindis, comunibus annis in tyme cuming, and no moir, of siluer dewtie zeirlie iii ^cxxxiii ^lib vi ^s. viii ^d. And hes been in vse of pay of rentallit bollis for the personage teind, to the titular and takisman, of wictuall zerlie . xl bollis burdenit with the few-dewteis and teind-dewteis.

And siclyk findis the landis of Nether Obney, Over Obney, and Wester Burnebane, perteining to the said Sir Williame Stewart, to be fewit of auld by vmqahil Alexander Erskine, Sub-dean of Dunkeld, w ^t consent of Mr James Hepburne, Dean of Dunkeld and viccar-generall sede vacante and channonis of the chapter thairof, to vmquhil Alexander Abercrombie of Murthlie and Elizabeth Dischintoun, his spous, and the said vmq ¹¹ Alex ^rs airis, &c., w ^t the teindis of the saidis landis, als weill personage as wiccarage, quhilk wer never in vse to be separat fra the stok, conforme to ane chairtour producit y ^ranent. of dait the tent day of Junii Jajv ^c. and fyftie zeiris, but na cofirma ^on. of the same is as zit producit.”

The respondent founded on the former paragraph as containing a valuation of all lands of Obney belonging to him in the parish of Auchtergaven—including Over and Nether Obney—at forty rental bolls; while the objectors maintained that the following paragraph showed that Over and Nether Obneys had never previously been valued, being held on a decimæ inclusæ title, and were not valued by that report.

The history of the titles so far as throwing light on the present question, was as follows:—A charter dated 10th June 1550 was granted by Alexander Erskine, then Sub-dean of the Cathedral Kirk of Dunkeld, “cum consensu et assensu venerabilis et egregii viri mgri. Jacobi Hepburne dicte cathedralis ecclesie decani ac eiusdem Sede vacante vicarii generalis et canonicorum capituli dunkelden.,” the words of conveyance being “dare concedere arrendare locare et ad feudifirma. seu emphiteosim dimittere honorabili viro Alexandro Abircrumy. de Murthlie et Elizabet Dischingtoun eius sponse in coiuncta. infeodatione et heredibus masculis inter eosdem legitime procreatis seu procreandis quibus deficientibus heredibus masculis dicti Alexandri quibuscunq. Omes. et singulas terras meas de nethir Obeny vuir Obeny et vest. Burnbane cum jure piscande super aquam de Taya et cum mollendinis constructis seu construendis vnacum vniusis. et singulis decimis tam Rectorie qua. vicarie earundem terra-rum cum pertinen. que temporibus preteritis ab eisdem terris et fructibus earundem principalibus seu trunco mie. separari solebant vnacum aliis necessariis que predecessores mei et ego nostriq. tenentes de dictis terris habuimus habemus seu habere poterimus aut saltem habere pretendebamus intra baroniam dunkelden. et vicecomitatu. de Perth jacen. vnacum aliis et singulis suis partibus pendiculis et pertinen. quibuscuq.” The reddendo ran thus—“Reddendo inde anuatim. dicti Alexander Abircrumy. et Elezabet Dischingtoun eius sponsa heredesq. sui predicti mihi et successoribus meis dukelden. subdecanis qui pro tempore fuerint Sumam. viginti sex libraru. quatuor solidoru. et quatuor denarioru. monete currentis Scotie tanquam pro antiqua firma dictarum terrarum de nether Obeny vu. Obeny et vest. Burnbane cum piscatura molendinis constructis seu construendis decimis tam rectorie quam vicarie et aliis pertinen. predictis vnacum suma Tredecim solidoru. et quatuor denarioru. consi-mills monete nuc per dictum Alexandrum augmentat Extenden in integro ad sumam. viginti sex libraru. septemdecim solidoru. et octo denarioru. ad duas anni terminos.” The lands so conveyed were subsequently obtained from the Abercromby family by Sir William Stewart of Grandtully, and by Crown charter of date July 1615, after the Act of Annexation, King James VI. disponed to him and his heirs and assignees whomsoever, inter alia, the lands and barony of Murthly, and the lands of Nether Obney, Over Obney, and Wester Burnbane, with the teinds, parsonage and vicarage, as never having been separated from the stock, lying in the barony of Dunkeld. The quæquidem narrated the former tenure from the Sub-dean of Dunkeld, and subsequently from the Crown by virtue of the Act of Annexation. This charter annexed Over and Nether Obney to the re-erected barony of Murthly. In a sasine of 1620, in favour of Sir W. Stewart, four Obneys—Nether, Over, Meikle, and Easter alias Muirheadstone—were mentioned as separate lands. In a Crown charter of 1623 in favour of Sir W. Stewart, of the baronies of Grandtully and Murthly, no mention nominatim occurred of the lands of Over and Nether Obney. In 1635, the rights of chapters having been restored by the Act of 1617, Over and Nether Obney were, inter alia, again given out by the then Sub-dean of Dunkeld to Sir Thomas Stewart, then of Grandtully, in the same terms as the charter of 1550, and were described as lying in the barony of Dunkeld.

The objectors maintained that the lands in question had not been valued by the Sub-commissioners in 1629–35, being then believed to be held on a decimæ inclusæ title. The first-quoted paragraph of the report showed that the lands of Obney had been in use to pay 40 bolls of parsonage teind to the titular, who was the Bishop of Dunkeld. Now, it was impossible that any teind could be paid to him by Over and Nether Obney, (1) because the sub-dean, who had feued these lands, was proprietor of both land and teind; and (2) because the decimæ inclusæ right, though not good to infer immunity from stipend, was good to protect the Stewarts from paying teind to the titular.

The sasine of 1620 showed that at that date four distinct parcels of land were known as “Obney,” and the presumption was that Over and Nether Obney and Wester Burnbane, alias Meikle Obney, were intentionally distinguished in the report from the Obney in the barony of Murthly, mentioned in the first-quoted paragraph.

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The latter could not include Over and Nether Obney, for these were originally in the barony of Dunkeld, and though the charter of 1615 annexed them to the barony of Murthly, they reverted to that of Dunkeld after the restoration of chapters in 1617. The original reddendo of £26, 17s. 8d. of the chapter of 1550 was repeated in the titles subsequent to 1617.

The respondent contended that the lands in question had been valued by the Sub-commissioners; the presumption must be that they did their duty, which was to value, as no confirmation of the charter was produced to them. The Obneys mentioned in the two paragraphs of the report quoted were in fact the same lands, and there were no Obneys at the date of the report except these in the barony of Murthly—Over and Nether Obney and Wester Burnbane having been by charter of 1615 expressly added to that barony. The decision in Officers of State v. Stewart, 20 D. 1331, though scarcely amounting to a res judicata, proceeded to some extent on the assumption that the lands in question were valued by the report in 1629–35.

The respondent also pleaded res judicata in respect of various judgments in the years 1811, 1858, and 1876. The most important of these pleas was founded on an interlocutor pronounced by Lord Curriehill, Ordinary, on 9th November 1876, in a process between Sir A. D. Stewart and the Lord Advocate, which held that the teinds of Over and Nether Obney had been included in the old valuation of 40 bolls victual. This interlocutor proceeded on an admission to that effect by the Lord Advocate.

The respondent argued that when a question had been raised between two parties in a locality, the decision was binding upon all parties concerned. The objectors replied that the Court would be slow to sustain res judicata in a matter of compromise and concession ( Jenkins v. Robertson and Others, 5 Macph., H. of L., 27); that the Lord Advocate's admission could in no case be binding as against the minister and heritors; and that the locality in which the judgment was pronounced had not yet become final.

The pleas-in-law for the objectors were, inter alia—“(1) The Lands of Obneys in the barony of Murthly, consisting of Meikle Obney and Easter Obney or Muirheadstone, and the lands of Nether Obney and Over Obney in the barony of Dunkeld, being separate and distinct lands, ought to have been separately specified, and the teinds thereof separately stated by the common agent in his rectified state of teinds. (2) The lands and teinds of Obneys in the barony of Murthly having been valued by the sub-valuation in 1629–35, and approbation of that sub-valuation in 1796, the exact amount of the teinds, parsonage and vicarage, as thereby valued, ought to have been stated by the common agent in his rectified state of teinds. (4) The interlocutor of the Lord Ordinary of 9th November 1876 being, at least so far as inconsistent with the prior interlocutors of the Lord Ordinary and of the Court in 1857 and 1858, ineffectual and inoperative, the common agent ought to have given effect to these interlocutors, and to have stated the teinds of Over and Nether Obney in his rectified state of teinds irrespective of it. (5 ) Separatim—The said interlocutor of 9th November 1876 being, as regards the objectors, res inter alios acta, cannot be allowed to prejudice them.”

The respondent pleaded—(1) Res judicata, in respect of the judgments of 1811, 1858, and 1876. “(2) The teinds of Over and Nether Obney being contained in the sub-valuation of 1629–35, and in the approbation thereof in 1796, the present objections fall to be repelled.”

The Lord Ordinary ( Rutherfurd Clark) pronounced an interlocutor finding that the teinds of the lands of Nether Obney and Over Obney were not valued. He added this note:—

“ Note.—The question in this case is, whether the teinds of the lands of Nether Obney and Over Obney have been valued by a sub-valuation in 1629–35, which was afterwards approved of by the High Commission, conform to decree dated 3d February 1796? The sub-report values the teinds of the lands of Obneys ‘lyand within the barony of Murthlie,’ and further finds that the lands of Nether Obney, Over Obney, and Wester Burnebane, ‘to be fewit of auld by the Sub-dean of Dunkeld … with the teindis … alsweill personage as viccarage, quhilk wer never in use to be separat fra the stock, conforme to’ charter, dated 10th June 1550, ‘but na confirmatioun of the same as zit producit.’ The contention of the objectors is that the lands of Obneys, the teinds of which are valued, are the lands of Meikle Obney and Easter Obney or Muirheadstone. These, they say, are in the barony of Murthlie, while the lands of Over and Nether Obneys are in the barony of Dunkeld.

(1) The respondent pleads that the question is res judicata. The judgment founded on is that pronounced by Lord Curriehill on 9th November 1876, in a record made up between the present respondent and the Lord Advocate. The allegation in that record was that the lands of Obneys included the lands of Over and Nether Obney. This was admitted by the Lord Advocate, and the judgment of Lord Curriehill proceeded on that admission. If the allegation was true in fact, there could be no question; and though in the earlier form of the record the Lord Advocate had averred that ‘Over and Nether Obney are separate lands and are unvalued,’ he withdrew that averment and made the admission already mentioned.

The Lord Ordinary would be disposed to hold that a judgment pronounced in a locality is binding on the heritors who are not formally parties to the record, provided that it is pronounced in a fairly contested suit. But the respondent does not contend that this was the case. At the utmost, he represents the judgment as proceeding on the admission of the Lord Advocate, and maintains that a judgment founded on such an admission is as binding as any other. This would be so if the party making the admission possessed any representative character, as, for example, if he had been the common agent. But the Lord Advocate possessed no such character. He merely acted for the Crown as titular of certain teinds, and neither the admission nor the judgment which follows on the admission can, it is thought, be res judicata against the heritors.

(2) On the merits, the case for the respondent is that the lands of Obneys, lying in the barony of Murthly, include, or are identical with the lands of Nether and Over Obneys.

The earliest title to the lands of Nether and Over Obney is a charter in 1550, by which the

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Sub-dean of Dunkeld feued these lands to Alexander Abercromby of Murthlie. They are described as lying in the barony of Dunkeld. The teinds are conveyed and are described as being ‘never in use to be separat from the stock.’ In 1615, after the Act of Annexation, there is a Crown charter in favour of Sir W. Stewart of Grandtully, conveying to him, 1st, the barony of Murthly, and 2d, the lands of Nether and Upper Obney, with the teinds thereof. The description of the latter subjects is the same as in the charter of 1550, and the quæquidem deduces the tenure as originally from the Sub-dean of Dunkeld, and now from the Crown, by virtue of the Act of Annexation. But the barony of Murthly is of new erected, and the lands of Nether and Over Obney and others are annexed to it.

In this charter the lands which are comprehended in the barony of Murthly are not described in detail, nor are any mentioned under the name Obney. But in a sasine of 1620 Nether Obney and Over Obney, Meikle Obney, and Easter Obney or Muirheadstone are mentioned as separate lands.

Chapters were restored by the Act 1617, c. 2 (Thomson, iv. 529), and in 1635 the lands and teinds of Nether and Over Obney were again given out in the same terms as before by the Sub-dean of Dunkeld; but they are described as lying in the barony of Dunkeld. Accordingly, the objectors maintain that they were disunited from the barony of Murthly in 1617, when they were restored to the Sub-dean, and that they lay in the barony of Dunkeld at the date of the sub-report.

There are now existing three processes of locality, the earliest of which began in 1793. There has been much litigation in connection with the teinds in question. It is not necessary to state all the details. But there are some parts of it to which it seems proper to refer.

So far back as 26th January 1807 it was decided by Lord Woodhouselee that ‘the teinds of the lands of Obnies and Muirheadstone must be stated at 40 bolls, conform to old valuation.’ It will be observed that there was a double valuation, the one by the rent of stock and teind, and the other by the rental bolls, and by this judgment the latter was found to prevail. The Court adhered in December 1811.

In 1851, in answer to a minute which was lodged for the Lord Advocate, the respondent's predecessor Sir W. Stewart stated that the whole of his lands within the parish were comprehended in the description of Nether Obney, Over Obney, and Wester Burnbane. A record was made up between the Lord Advocate and Sir William Stewart, which contained a similar averment. But in 1854 Sir William was allowed to amend his record, and his ‘second amended revised statement’ stood thus—That the lands of Obneys lying in the respondent's barony of Murthly consist of Meikle Obney and of Easter Obney, otherwise called Muirheadstone. That these are the lands referred to in the sub-valuation of 1629 as the lands of Obneys lying in the barony of Murthly, and the teinds of which were thereby valued; and that the lands of Nether Obney, Over Obney, and Burnebane are ‘held under a complete decimæ inclusæ right.’ This is a very distinct statement. The teinds of the lands last mentioned were not said to be valued, but a claim for exemption was set up.

Much litigation followed on this plea of exemption. But it was ultimately decided that it was not well founded—1st, by the Lord Ordinary on 27th May 1857, and 2d, by the Court on 10th July 1858.

After that judgment Sir William Stewart on 8th June 1864 lodged a condescendence, in which he stated that the teinds of the lands of Over Obney and Nether Obney were unvalued, and an interim locality was made up on that footing. But another change in the pleadings occurred. On 20th July 1876, the respondent, who had been sisted in place of Sir William Stewart, was allowed to amend his record. He did so by alleging in substance that the lands of Obneys mentioned in the sub-valuation comprehended, or were identical with, the lands of Nether and Over Obney. This averment was admitted by the Lord Advocate, and the judgment of Lord Curriehill followed.

It is in these circumstances that the Lord Ordinary is called on to decide this question. He cannot help saying that the respondent and his predecessor have been allowed a strange license in altering their statement of facts, and it is singular that a party who asked for and obtained the judgment of the Court on one statement of facts should be allowed in the same process to obtain the judgment of the Court on another statement diametrically opposite.

The Lord Ordinary conceives that the subvaluation is of itself conclusive of the question. The lands the teinds of which are valued are therein stated to have been in use to pay 40 rental bolls to the titular and tacksman yearly—that is to say, to the bishop and his tacksman. To the Lord Ordinary it appears that this fact is wholly inconsistent with the theory that they are identical with the lands of Nether and Over Obney, which in the same report are described as being part of the benefice of the sub-dean, and with the statement that the teinds thereof were never in use to be separated from the stock. It is said, no doubt, that the lands of Nether Obney and Over Obney are included in the lands of which the constant rent is fixed, and that the finding regarding the use of paying rental bolls is applicable only to that part of the lands from which the rental bolls were paid; or, in other words, that the rental bolls were paid from a part and not from the whole lands. But this does not appear to the Lord Ordinary to be the legitimate construction of the report, and it could only be adopted on proof of the fact on which it depends. But no such proof is offered. Indeed, the evidence is all the other way. Further, it would lead to the result that if the valuation by rental bolls was adopted, as was the case, there would be no valuation of the teinds of the other lands, for there are no means of apportioning the constant rent.

But if the titles be examined, the case seems all the clearer. Nether Obneys and Over Obneys were acquired from the sub-dean. The charter of 1550 is granted by the sub-dean with the consent of the dean and chapter, the see being then vacant. Again, in 1635 they are given out by the sub-dean with the consent of the bishop and dean and chapter. It was urged that they were bishop's lands, and that the rental bolls were pay

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able to him therefrom. But it appears to the Lord Ordinary that neither plea can avail. It is the sub-dean who dispones as proprietor. In 1550 the assent of the bishop to the alienation of a part of the benefice of the sub-dean could not be given, as the see was vacant. But in 1635 the bishop appears as a consenter only, while it is the sub-dean who dispones and confirms. Further, it seems to the Lord Ordinary impossible to hold that the rental bolls had been in use to be paid to the bishop from teinds which in both charters of 1550 and 1635 are described as never having been separated from the stock.

So far back as 1620 it appears that there were four Obneys, and the same distinction obtains in the later titles.

The objectors founded on the fact that the lands of which the teinds are valued are described as lying in the barony of Murthly, while Nether and Over Obneys are in the barony of Dunkeld. The Lord Ordinary has not attached importance to that argument, considering that the latter lands were annexed to the barony of Murthly erected in 1615, and that a mere error in description would not affect the valuation.

The Lord Ordinary was referred to the opinions of Lord Curriehill and Lord Deas in the case of the Officers of State v. Stewart, 20 D. 1331, in which the decimæ inclusæ right claimed for Nether and Over Obneys was negatived. He need not say that for these opinions he feels the utmost deference and respect, and that if he thought that these Judges had decided the present question he would bow to their authority. But it could not be decided by them. In fact the averments of Sir William Stewart were such that if it had been raised, it must have been decided against him. For his case was, that while the teinds of Meikle and Easter Obney had been valued, the teinds of Nether and Over Obney had not been valued, but were held on a decimæ inclusæ right. The Court had, as already mentioned, decided that the valuation of the teinds of Obneys and Muirheadstone was to be taken at 40 bolls, and not at a fifth of the constant rent, or, in other words, they dealt with them as bishop's teinds. Sir William Stewart was of course making no attempt to impeach that judgment or to deny that he was not liable for teind to the amount of 40 rental bolls. He was contending that he was not liable for the teinds of lands other than those which were valued in respect of his alleged decimæ inclusæ right.

There are some expressions which fall from the Judges to whom the Lord Ordinary has referred which seem to imply that the valuation included all the Obneys. But if that be their just meaning, the dicta are obiter merely. As has been seen, Sir William Stewart, on his record as it then stood, could not have maintained any such plea, and if he thought that he could, he would have had no interest to plead his decimæ inclusæ right. The Lord Ordinary has therefore held himself bound to give his decision in this case according to his own judgment.”

The respondent reclaimed.

Authorities—on Res judicata—Lord Hopetoun v. Ramsay, March 2, 1841, 3 D. 685 — H. of L., March 27, 1846, 5 Bell's App. 69; Duke of Buccleuch v. Common Agent in Locality of Inveresk, Nov. 10, 1868, 7 Macph. 95; Bonar v. Lord Advocate, Nov. 3, 1870, 9 Macph. 58; Thomson v. Lord Advocate, June 21, 1872, 10 Macph. 849; Jenkins v. Robertson and Others, June 9, 1864, 2 Macph. 1162—April 5, 1867, 5 Macph. (H. of L.) 27. On merits— Officers of State v. Stewart. July 20, 1858, 20 D. 1331; Earl of Dalhousie v. Somers, July 15, 1864, 2 Macph. 1349.

At advising—