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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bryden Petitioner [1914] ScotLR 35 (30 October 1914)
URL: http://www.bailii.org/scot/cases/ScotCS/1914/52SLR0035.html
Cite as: [1914] ScotLR 35, [1914] SLR 35
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SCOTTISH_SLR_Court_of_Session
Page: 35↓
Court of Teinds.
(Before the
Facts:
The Glebe Lands (Scotland) Act 1866 provides (sec. 18) that on the Court granting an application to feu a glebe, the amount of the expenses incidental thereto shall be decerned as “a permanent burden upon the glebe”; and (sec. 19) that any casualties of superiority which shall become payable under any feu-charter to be granted shall be accumulated as a sinking fund for the purpose of paying off the said burden.
In a petition for authority to feu a glebe, the petitioner sought to have the amount of any increment duty which might become exigible under the
Finance (1909–10) Act 1910 in consequence of the feuing decerned to be a permanent burden on the glebe. The Court granted the prayer of the petition.
This was a petition by the Reverend James Henderson Bryden, B.D., minister of the parish of Markinch, for authority to feu the glebe, and, inter alia, to decern the amount of the increment value duty, if any, which might be payable as the result of the feuing of the glebe, a permanent burden on the said glebe in terms of the Glebe Lands (Scotland) Act 1866 (29 and 30 Vict. cap. 71).
Argued for the minister—If glebes which came to be feued were liable for increment value duty in terms of the Finance (1909–10) Act 1910 (10 Edw. VII, cap. 8) the sum involved might be considerable. Such duty was a capital sum payable once and for all, and it seemed fair that it should form a burden on the glebe, to be gradually paid off in the same way as hitherto other incidental expenses had been dealt with in terms of the Glebe Lands (Scotland) Act 1866 (29 and 30 Vict. cap. 71), sections 18 and 19. A minister's tenure of a glebe was precarious, and unless this power were granted, for which it was true there was no statutory authority, the minister for the time being, as the granter of the feu-charter, would make himself liable for payment of the duty, although his tenure might cease at any moment.
The Court, by interlocutor dated 30th October 1914, authorised the petitioner to feu the glebe, and further authorised “the amount of the increment value duty, if any, which may be payable as a result of the feuing of the said glebe or any parts thereof, as the same shall be ascertained, to form a permanent burden on the said glebe.…”
Counsel for the Minister— Milne. Agents— Kinmont & Maxwell, W.S.