Scottish Court of Session Decisions

Horatio Ross Macrae, W.S., Edinburgh, judicial factor on the trust-estate of the late Neil Griffiths Buchanan of Knockshinnock, and as such proprietor of the teinds, parsonage and vicarage, of the lands of Little Udston, lying in the parish of Hamilton, brought an action in the Sheriff Court, Edinburgh, against The Assets Company, Limited, proprietors of said lands, for payment of £25, 12s. 1 3 4d., with periodical interest thereon, being the amount of free teind of the lands from 1884, the date of the defenders' entry, until 1893. The defenders admitted that the pursuer was proprietor of the teinds and that they had not paid any of the free teinds since the date of their entry, but explained “(1) that the defenders, since the date of their entry, have regularly paid their proportion of stipend which they believed exhausted the teinds; (2) that no claim was made by the pursuers, or anyone else, against the defenders for free teinds until 11th January 1892, and that the pursuer had no title to uplift or discharge the teind till 5th November 1892; (3) that the defenders have regularly since 1884 divided the whole available revenue of the company among the shareholders every half-year, and that the free teinds now claimed have thus been consumed in bona fide.”

They pleaded—“(1) The defenders having in bona fide consumed the free teinds for the crops 1884 to 1891 inclusive, should be assoilzied from the pursuer's claim therefor, and quoad ultra the petition is unnecessary, and should be dismissed, with expenses.”

Upon 7th February 1894 the Sheriff-Substitute ( Rutherfurd) pronounced the following interlocutor:—“Finds that in the circumstances of the case there is no room for the defenders' plea of bona fide perception and consumption: Therefore repels the defences: Ordains the defenders to make payment to the pursuer of the principal sum of £25, 12s. 1 3 4d., with interest thereon at the rate of £5 per centum per annum from the date of citation until payment, and decerns, &c.

“ Note.—… The only defence to the present action for recovery of surplus teind, since the defenders' entry to the lands in July 1884, is the plea of bona fide perception and consumption. Now, the Sheriff-Substitute sees no reason to doubt that the defenders, or rather those who acted for them, acted in perfect good faith, on the mistaken assumption that after paying the proportion of stipend due to the minister the teind was exhausted. That indeed is not disputed by the pursuer. But the Sheriff-Substitute is not aware of any instance in which the plea of bona fide perception and consumption has been sustained, unless the party either had some colourable although defective title, to which his intromissions could be ascribed, or had been in use for a period of at least forty years, with the tacit acquiescence of all concerned, to make payment of a customary teind duty to a person understood to have a full title to the teinds. The case cited by the defenders' agent, of Stirling v. The Feuars of Denny, 1731, Dict. 1717, and 1 Paton's App. 90, affords an illustration of this. It was there held that a heritor, until he was interpelled by the true titular, was a bona fide possessor, because although he had erroneously intromitted with the teinds of his lands he did so in virtue of a grant from another as tacksman; while in a different branch of the same case a number of feuars who for time immemorial had paid a certain rate to the successive incumbents of the parish, which they had reason to believe exhausted their teinds, were also held by the House of Lords to be bona fide possessors, reversing upon this point the judgment of the Court of Session. In similar circumstances a like judgment was pronounced in the case of Sir John Scott v. The Heritors of Ancrum, 1795, Dict. 15, 700, and reference may also be made to the dicta of the Judges in Haldane v. Ogilvy, 1822, 10 Macph. 62, and the Lord Advocate v. Drysdale, 1822, 10 Macph. 499, aff. 1 R. (H. of L.) 27. There is nothing in these decisions to warrant the conclusion that, irrespective of immemorial usage or a colourable title, a heritor intromitting with the teinds of his lands will be entitled to plead bona fide assumption in a question with the titular claiming byegones.

The only other matter to be disposed of is the pursuer's claim for periodical interest on the arrears, which raises a question not altogether free from difficulty. But it is always a question in which the discretion of the Court must be exercised according to the special circumstances of the case. There is no room for supposing that those who acted for the defenders were not in good faith in assuming that the teinds of the lands were exhausted by the payments made to the minister. It is true that they do not seem to have made any special inquiry into the matter, and even if they had done so, they might have had some difficulty, and incurred considerable expense in ascertaining the state of the title. On the other hand, the titular could have none, and as Lord Benholme said, in such a case, ‘The proper remedy is to deny interest to the titular, who for years delays to demand his teind duty’— University of Glasgow v. Pollock, 1822, 6 Macph. 884.”

The defenders appealed to the Sheriff ( Blair), who adhered.

“ Note.—… But if the defenders have no title, or apparent or colourable title, to the teinds, their defence of bona fide perception and consumption cannot be maintained. The defenders referred to the case of the Lord Advocate v. Drysdale, 10 Macph. 499, 1872, aff. L.R., 2 S. & D. App. 368, in support of their contention. In that case the predecessors of the defender had held a lease of the teinds and of certain feu-duties from the Crown, which commenced in 1780 and expired in 1799, but was thereafter continued by tacit relocation till 1838, when an action of removing

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was instituted so far as regarded the feu-duties, and in the following year an inhibition was taken out to put an end to the lease so far as regarded the teinds; but it was admitted that this inhibition was invalid, and nothing more was done till 1871, when a fresh inhibition was executed, which put an end to the tacit relocation. In this case the defenders have no title corresponding to the lease followed by tacit relocation which was successfully put forward as the basis for the pleas of bona fide perception and consumption in the case of the Lord Advocate v. Drysdale. In Watt's Trustees v. King, 8 Macph. 132, the decision turned on the construction of a feu-contract by which the superior feued out the lands as possessed by a tenant, who presumably had possession of both stock and teind, and excepted from the warrandice clause, ‘cess, teind, and public burdens.’ After the feu had been granted the vassals were localled upon in several localities as proprietors of the teinds, and it appeared that the superior had never asserted any right to any surplus teinds, so that while the terms of the feu-contract were ambiguous, usage had interpreted it from the first in favour of the vassals' contention. In the present case the pursuer avers, and it is not denied, that the free teinds were paid to the pursuer's predecessors prior to 1864. Although no payments on account of free teinds have been made by the defenders or their predecessors since 1864, the Sheriff does not think that in the absence of any title in the defenders that this is any defence to the pursuer's claim—see Lord Advocate v. Duke of Athole, 1822, 12 R. 882, Lands of Pitdornie.”

The defenders appealed to the First Division, and argued—(1) They had a title to the teinds which supported their plea-in-law. (2) The titular of the teinds had himself to blame for not claiming, and should not now get decree. The Court did not regard claims for arrears of teind with favour.

Argued for respondent—The argument upon title was irrelevant. There were no statements on record in support of it. The defenders' one plea was bona fide consumption, but that was only maintainable where there was a colourable but defective title. The judgments of the Sheriffs were right upon the grounds stated, and the authorities cited by them.

At advising—