Scottish Court of Session Decisions

This was an action at the instance of the Crown as titular of the teinds of the lands of Pitdornie and Dalcroy, in the parish of Dull and county of Perth, against the Duke of Athole, the proprietor of these lands, for payment of (1) the sum of £30, 4s., being the amount of the surplus teind of the lands of Pitdornie from 1861 to 1881; and (2) the sum of £227, 19s., being the amount of the surplus teind of the lands of Dalcroy from 1844 to 1881.

By a tack of teinds, for 19 years from the term of Lammas 1791, the Crown let to the then Duke

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of Athole, at a yearly rent of 5s. 3d. sterling, “All and Haill the teind sheaves and other teinds, both great and small, parsonage and vicarage, of all and sundry the lands of Boahally,” &c, including the teinds of the lands of Pitdornie and Dalcroy.

On 27th September 1839 letters of inhibition of teinds were raised at the instance of the Crown, and the pursuer in the present action averred that “Following upon the said inhibition of teinds, surplus teind was collected by the Crown from the lands of Pitdornie, mentioned in the said tack, for crops 1841–60, both inclusive, with the knowledge, consent, and acquiescence of the defender or his predecessors, who thus recognised and homologated the said inhibition as a valid inhibition, and as putting an end to tacit relocation under the said tack. The teinds of the crops of 1839–40 were discharged ex gratia, and this discharge was accepted by the defender's predecessors as being ex gratia. No tack-duty has been paid by the defender's predecessors or himself under the said tack since the date of the said inhibition.”

The defender stated that on the expiry of the tack at Lammas 1810 the teinds of the lands were possessed by the tacksman upon tacit relocation. He further stated that the letters of inhibition were executed on 27th September 1839, “and were directed against the instant crop, as to which tacit relocation had already taken place,” and that no action or proceeding was taken to oust the tacksman from possession. It was denied “that surplus teind was collected by the Crown from the lands of Pitdornie for crops 1841–60, but explained that the Crown receiver having in or about 1859 asked payment of the surplus teind of Pitdornie, the defender's predecessor, by mistake, and in ignorance of the inhibition being then and ab initio ineffectual and inoperative, made payment.” The defender admitted that no surplus teind had been paid from the lands of Pitdornie since 1860. He stated that there had never been any surplus teind paid from the lands of Dalcroy, and that the Crown had made no demand for payment of the teinds of Dalcroy until 1882. He averred that “Before that time, however, the inhibition, even if originally good, which is denied, had expired, or had been derelinquished and rendered inoperative by the lapse of more than forty years from its date, and the defender still possesses the teinds upon tacit relocation.” It was further averred—“The teinds of the miln lands of Bohally or Dalcroy are unvalued and unascertained, and so blended with the stock as to be undistinguishable from it, and the whole produce of these lands has been consumed by the defender and his predecessors for a period far exceeding forty years, without question or interruption.”

The pursuer explained that the reason why no surplus teind was collected from the lands of Dalcroy was that the defender and his predecessors had denied that the lands of Dalcroy were in the parish of Dull, or that any teind was due the Crown therefrom. Reference was made by them to the process of augmentation raised in 1861 by the minister of Dull, and to the procedure therein, which is detailed in the opinion of the Lord President infra.

The pursuer pleaded—“(2) The teinds of lands belonging to the Duke of Athole, lying within the parish of Dull, having been let as a unum quid by the tack of 1791, the inhibition of 1839 was validly followed up and rendered operative to the effect of putting a stop to tacit relocation by the collection of part of the teinds thereby let. (3) The non-collection of surplus teinds from the lands of Dalcroy for forty years after the said inhibition, having been due to the unfounded representations made by the defender and his predecessors, to the effect that there were no lands of Dalcroy belonging to the Duke of Athole in the parish of Dull, the defender is not entitled to plead such non-collection against the validity of the inhibition, or the pursuer's present claim. (4) The defender is not entitled to plead bona fide consumption, in respect—(1st) that the said inhibition, and the collection of teind following thereon, was valid and sufficient notice to him or his predecessors that his title to the teinds of his lands in the parish of Dull had come to an end; (2d) that thereafter there was no colourable title to which he could attribute his possession and consumption of surplus teind from the said lands, or any part thereof; and (3) that he has paid no tack-duty since the date of the said inhibition.”

The defender pleaded—“(1) The said tack having subsisted by tacit relocation to the date of the present action, the defender is not liable for the teinds, or surplus teinds, of the said lands, or for the sums sued for as the alleged amount thereof. (4) The titular having dealt with the tack and the two subjects therein contained as divisible, by applying for the teind of the one and never applying for the teind of the other, and by acquiescing in the defender possessing the teinds as aforesaid for upwards of forty years, is now barred from maintaining his second plea-in-law. (5) Separatim, the teinds of the said miln lands of Bohally or Dalcroy being unvalued and undistinguished from the stock, and the defender having under a colourable title bona fide consumed the whole produce for a period of more than forty years, he is entitled to absolvitor. (6) The teinds being unvalued, the titular ought to have timeously teinded the crop of each year, and having failed to do so the defender is not now liable for such teind. At all events, the pursuer can only claim such teind as he can prove to be the actual victual teind of each separate crop and year, and his claim ought not in any view to be admitted to probation without specification.”

The Lord Ordinary ( M'Laren) on 19th July 1884 pronounced this interlocutor:—“Finds (1) That the inhibition of tithes libelled was irregular, in respect that it was used after the commencement of tacit relocation for the crop and year 1839–40, to which the inhibition has reference; (2) That the right to object to the letters of inhibition on the ground of such irregularity was waived by the defender's author in 1859 making payment of arrears of surplus teind to the Crown; (3) That by this payment of arrears the inhibition was recognised by the defender's author as an effectual inhibition for all purposes, and therefore that the Crown is entitled to sue for the surplus teinds of Dalcroy and Pitdornie; and (4) That the benefit of the letters of inhibition has not been lost by dereliction; and with reference to these findings, appoints the case to be enrolled with a view to the ascertainment of the value of

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the surplus teinds of the foresaid lands, and grants leave to reclaim.”

“ Opinion.—This is an action at the instance of the Crown, as titular of the teinds of the parish of Dull, against the Duke of Athole, heritable proprietor of the lands of Boahally and others in that parish, concluding for the payment of arrears of surplus teind of the parish. The Duke's ancestors in 1791 obtained a tack of the teinds of the lands in question at the (apparently) nominal rent of five shillings and three pence sterling.

“In 1839 inhibition was used at the instance of the Crown against the heritors, tenants, and possessors of the lands out of which these teinds were payable. On the authority of the case of Lord Advocate v. Drysdale, 1 R. (H. L.) 33, it must be held that the inhibition was irregular—(1) because it was given after the term of Lammas, at the term at which tacit relocation would commence; and (2) because being an inhibition applicable ‘to this instant crop,’ it could not be supported as an inhibition applicable to the teinds which were to come into existence in the immediately following year. But in the year 1859 it is admitted that the Crown demanded and received from the Duke of Athole the surplus teinds of Pitdornie (part of Boahally) for crops 1841–59, and this payment is said to have been continued in the year 1860, though I am not sure whether I am to take this second payment as admitted. Since 1861 it is stated on behalf of the Crown that its officers were not in a position to demand surplus teinds, because there was a pending locality, which has only recently become final.

“The first question is, whether the defender's predecessor, by the payment of the arrears of tithe in 1859 is to be held to have waived, for himself and his successors, the objection which might have been taken to the inhibition of 1839. I am of opinion that the payment in question is equivalent to a waiver of the objection. I think that such objections admit of being easily waived, and that the objection, if once waived, cannot be taken thereafter. It must be considered that a tenant who holds by tacit relocation does not possess by the will of the proprietor, but in virtue of the rule of law, which in questions of rural tenancy treats the year as an indivisible unit, so that if the tenant has entered on a new year of possession, he cannot be evicted until the termination of that year. The proper way of terminating such a right is by inhibition, but it may be that the tenant of tithes is willing to remove without inhibition, and where such is the case inhibition would be unnecessary. It might be putting it too strongly to say that there is a duty to remove from the possession of tithes without warning, or its equivalent, inhibition; but if a tenant of tithes is willing to accept something less than full legal notice, I think that there is a sufficient rational cause to support such a renunciation even in a question with creditors.

“In this case it is said that in 1859 the Duke or his advisers were ignorant that the inhibition had been used. It is only said that payment was made in ignorance that the inhibition was ineffectual. If the Duke of Athole had suffered any inconvenience from the circumstance that inhibition was used too late, it is most likely that the objection would have been discovered and founded on. But here payment is made of arrears extending over a period of eighteen years; and it must be assumed that when the payment was made the Duke meant to acknowledge that his right as tenant had come to an end, and that he was willing to account to the Crown as titular. In these circumstances I think it would be contrary to equity to allow the defender to plead an objection which was not taken at the proper time, when it might probably have been obviated by the execution of new letters of inhibition.

“The next question is, whether the waiver of this objection, when a demand was made for payment of the teinds of Pitdornie, will bind the defender when a demand is made for teind for the larger subject of Dalcroy? Now the objection was that the inhibition was served too late, and that the whole tithes described in the tack were therefore possessed by the tenant by tacit relocation. I cannot understand how such an objection can be maintained as to one part of the subject, and departed from as regards another part of the subject. In the absence of any indication to the contrary, I must hold that the inhibition is treated by the parties as an effectual inhibition for all purposes.

“For similar reasons I am unable to give effect to the plea of dereliction of the inhibition as regards the teinds of Dalcroy. Dereliction is only to be presumed in consequence of no action being taken on the inhibition for the period of forty years. But here there was payment of tithe from part of the subject in 1859, and this payment, I think, was sufficient to keep the inhibition in force as an effectual interruption of the tenant's possession to all intents and purposes.”

The Lord Ordinary on 28th November pronounced this further interlocutor:—“Finds that the teinds sued for are unvalued, and that the value thereof is to be estimated according to the rule established in the Locality of Calton, at one-fifth of the rental of the estate from year to year: Quoad ultra continues the cause, and grants leave to reclaim against this interlocutor.”

The defender reclaimed against both these interlocutors, and argued—There could be no waiver of the objection to the inhibition, because it was null ab initio—2 Ersk. Inst., 10, 45; Lord Advocate v. Drysdale, February 24, 1872, 10 Macph. 499, 1 R. (H. of L.) 27. Moreover, inhibition in itself was not enough; the Crown should have brought an action of spuilzie, or stepped in and levied the teind— Governors of Trinity Hospital, December 20, 1848, 11 D. 266; Lord Advocate v. Skene, March 15, 1860, 22 D. 987; Urquhart v. Earl Moray, December 10, 1823, F.C., 2 S. 567. At all events, the payment as regarded Pitdornie could not affect the position of Dalcroy. There was no necessary connection between them, simply because they were included in the same tack, and so far as Dalcroy was concerned, the Crown had done nothing more than use inhibition. The authority of the Calton case, Burt v. Home, January 12, 1878, 5 R. 445, was not disputed, but it only decided that in a locality one-fifth of the rental was to be taken as teind. It had been decided in Scott v. Heritors of Ancrum, M. 15,700, Bell's Cases, 152, and Lady C. Graham, M. 11, 063, that when a titular sues for teinds he must aver and prove the amount of crop teinded each year by the tenant. There was here no relevant averment

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to remit to probation — Burt v. Home, supra.

The pursuer replied—The inhibition was, it might be, not unobjectionable, but any objection had been cured by the actings of parties. The payment of arrears in 1859 must be taken as a waiver of any objection, and as the lands had been let as a unum quid, payment of the teinds of Pitdornie must be held to bind the defender in a question with regard to the teinds of Dalcroy. The question as to the amount of the teinds was ruled by the Colton case—Forbes on Titles, 318; Sinclair, M. 15, 656; Smith, M. 15, 660; Earl of Galloway, M. 15,786.

At advising—