Scottish Court of Session Decisions

The Act 1672, cap. 13, enacts “that in all cases hereafter the ann shall be an half—year's rent of the benefice or stipend over and above what is due to the defunct for his incumbency, which is now settled to be thus, viz.—If the incumbent survive Whitsunday, there shall belong to them for their incumbency the half of that year's stipend or benefice, and for the ann the other half; and if the incumbent survive Michaelmas, he shall have right to that whole year's rent for his incumbency; and for his ann shall have the half-year's rent of the following year, and that the executors shall have right thereto, without necessity or expenses of a confirmation.”

Margaret Patrick or Fyfe, widow of the Reverend James Lamont Fyfe, sometime minister of the parish of Dairy, as an individual and as tutrix and administratrix-in-law of her pupil children, and James Gabriel Fyfe, her minor son, pursuers, brought an action in the Sheriff Court at Kilmarnock against the Reverend Andrew Bald Thomson, B.D., the present minister of the parish of Dairy, and others representing

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respectively the Presbytery of Irvine and heritors of Dairy, as trustees under a bond and disposition in security granted in their favour by William Gardiner, dated the 12th and recorded in the Register of Sasines on the 18th, both days of May 1903, defenders, craving the Court “to grant a decree against the defenders, as trustees foresaid, ordaining them to pay (first) to the pursuer Margaret Patrick or Fyfe as an individual the sum of twenty-five pounds six shillings sterling; (second) to her as tutrix and administratrix-in-law foresaid the sum of eighteen pounds nineteen shillings and sixpence sterling; and (third) to the said James Gabriel Fyfe the sum of six pounds six shillings and sixpence sterling, with interest at the rate of five pounds sterling per centum per annum on each of said sums from the fifteenth day of May Nineteen hundred and sixteen till payment.”

The pursuers pleaded—“The said interest on the said principal sum contained in the said bond and disposition in security as it fell due being part of the rent of the benefice or stipend of the parish of Dairy, of which the said James Lamont Fyfe was incumbent at his death, the said half-year's interest of £50, 12s., which fell due at Whitsunday 1916, and is in possession of the defenders as trustees foresaid, is part of the first half of the rent for the year 1916 of the benefice or stipend of said parish, and part of the ann of the pursuers, the widow and children of the said James Lamont Fyfe, and should have been paid to them by the defenders; and payment having been refused, decree should be pronounced in the pursuers' favour as craved with expenses.”

The defenders pleaded—“1. The pursuers' averments are irrelevant and insufficient to support their pleas. 2. The sum sued for not being ann, the defenders are entitled to absolvitor with expenses.”

On 24th July 1918 the Sheriff-Substitute ( J. A. T. Robertson) sustained the plea-inlaw for the pursuers, and decerned in favour of the pursuers in terms of the prayer of the petition.

Note—from which the facts of the case appear—“In 1858 the minister and heritors of the parish of Dairy and the Presbytery of Irvine leased to the Eglinton Iron Company and the Glengarnock Iron Company for twenty-one years the blackband ironstone underlying the glebe of the parish, in return for a grassum of £2100 and a nominal rent. In 1879 the same persons leased the clayband ironestone under the glebe to the Eglinton Iron Company for twenty-five years for a grassum of £600, and a similar nominal rent. The said two sums of £2100 and £600 are at present invested in a bond and disposition in security in favour of the late minister and the standing committee of the heritors of the parish and the presbytery ‘as trustees in trust for behoof of the incumbent for the time being of the benefice of Dairy.’

On 14th November 1915 the Rev. James Lamont Fyfe, who had been incumbent of the parish since 1891, died. The pursuers, his widow and children, in the present action claim that one half-year's interest upon the bond, over and above what was due and payable to the deceased as incumbent, is payable to them as ann. The question raised is, so far as the diligent research made by both sides of the bar could show, a novel one in the Courts, although it, or a similar question, seems on three occasions at least to have been determined on a reference to the Procurator of the Church of Scotland.

The defenders plead that the pursuers' averments are irrelevant. Their argument is that prior to 1672, according to the decision of the Court of Session, no ann was due from the glebe ( Colvil v. Lord Balmerino, 1665, M. 464), and that the Act 1672, cap. 13, upon which the right to ann now stands made no change in this respect. They maintain that as the sum contained in the said bond and disposition in security is the product of the sale of part of the glebe, it is a surrogatum for that part and must be so treated. They argue that if a money surrogatum for the glebe or part of it is not to be dealt with in the same way and held to be subject to the same incidents as the glebe, the terms of the Glebe Lands Act 1866, s. 15, would be unintelligible. The argument is a cogent one and I was much impressed by it.

It is quite clear that prior to 1672 the representatives of a deceased minister could not claim ann from the glebe. That follows from the nature of the rights involved. So far as I can ascertain, the ann has always been of the nature of a personal right, a right to demand payment from someone in money or in kind; the glebe right, on the other hand, is a right to occupy and possess. Historically I should think that down to a date much later than 1672 it was the rule for the minister of the parish himself to cultivate his glebe. It was not, therefore, in the ordinary sense of the term, a rent—producing subject. When the minister died his occupation of the glebe naturally ceased and there was no rent due of which payment could be demanded, and no person liable for it from whom it could be claimed,

The Act 1672, cap. 13, provided that ‘in all cases hereafter the ann shall be one half—year's rent of the benefice or stipend over and above what is due to the defunct for his incumbency.’ Its terms clearly indicate that the ann is not a right to possess any part of the benefice, but a right to demand payment in money or in kind.

Although the parties seek to draw from the terms of the Glebe Lands Act 1866 arguments to support their several contentions, both are agreed that the Act has no application to the circumstances of this case. I cannot find from a consideration of it any assistance in the determination of the question raised.

It is at the next stage of the defenders' argument that a difficulty arises. The right of the incumbent in a benefice to a glebe is a right to the possession and occupation of four acres of arable land. The benefits that accrue to him personally are those that flow from his possession and occupation, the produce of his cultivation of its surface. Lands which have been designated as a glebe

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may form an allodial holding a cœlo usque ad centrum, but the minister cannot, if minerals are discovered under it, at his own hand open up mines and possess and enjoy them.

It is true that by a practice of old standing, sanctioned by the Courts, the minerals under the glebe may be sold, as they were in this case, by the incumbent and heritors of the parish and the presbytery of the bounds, provided that the money received for them is invested at the sight of the same persons in trust for behoof of the incumbent and his successors in office. But where this has been done the glebe remains intact to the full extent to which it could be claimed or possessed or enjoyed by any individual incumbent, for from the nature of the case the minerals under a glebe will ordinarily be wrought, as they were in this glebe, from workings in the adjoining lands.

If that is so, can it be said that in any sense of the term the price of minerals is a surrogatum for the glebe or for any part of it? I do not think it can. The price is not a substitute for anything which the minister could claim or possess. It is, in fact, a fund created by the joint act of the incumbent, the heritors, and the presbytery out of something which the incumbent personally could not naturally possess or enjoy, for his benefit and that of his successors. In short, in my view it is an addition to the benefice. The interest derived from it will ordinarily be treated as stipend, and I have no doubt would form an element in the consideration by the heritors, perhaps by the Court of Teinds, of any application for an augumentation. If I am right this interest will form part of the ‘rent of the benefice’ within the meaning of the Act 1672, cap. 13, and as such be subject to the ann.

I express this opinion with diffidence, because I am informed that three distinguished procurators of the Church, for whose opinions I have the greatest respect, have each determined otherwise; but I have the less hesitation in expressing it,-since I understand that an authoritative decision will be sought and my judgment will have no effect.”

The defenders appealed to the Court of Session, and argued—The fund producing the interest of which the pursuers claimed for one half-year was the price paid for minerals lying below the surface of the glebe. That fund was to be regarded as the equivalent of part of the glebe. In the present case the glebe was designated without reservation of the minerals, and hence in fact it did include the minerals. Moreover, in law minerals were included in the glebe as part of it. There was no instance of a designation of a glebe under reservation of the minerals. Further, it would not be lawful to designate a glebe reserving the minerals. The presbytery's duty was to designate a glebe by boundaries, and it was ultra vires for them to do anything else. Thus they could not designate a servitude right to cast peats— Duff v. Chalmers, 1769, M. 5147—nor a salmon-fishing— Ogston v. Stewart, 1896, 23 R. (H.L.) 16, 33 S.L.R. 516. Further, the minister's rights were not limited to the surface of the glebe, but extended to the minerals below it, and that without any difference in nature or quality. His rights were of the nature of a life interest, analogous to the rights of an heir of entail in possession— Bontine v. Car—rick, 1827, 5 S. 811 (N.E.), 750, per Lord Alloway at p. 812. Both as regards surface and what was below it his rights had to be exercised sulva rei substantia. Thus he might cut trees on the glebe— Logan v. Reid, 1799, M. App. Glebe, Pt. I, No. 1; Bontine v. Carrick ( cit.). He could work marl— Ramsay v. Heritors of Maderty, 1794, M. 5153, and referred to in M. voce Glebe, App., Pt. I, No. 1. His right was not limited to the natural production of the surface, and he could work coal under it at the sight of the heritors and presbytery, whose function was to see that his successors did not suffer— Minister v. Heritors of Newton, 1807, M. App. Glebe, No. 6. Lord Reay v. Falconer, 1781, M. 5151, merely decided that a minister could not make kelp of sea-ware on the shore of his glebe, that right remaining annexed to the lands out of which the sea-ware had been designed. There was no decision that a minister could lease the minerals under the glebe. It had merely been inferred that as he could work the minerals himself he could lease them. That principle was at the root of the decision in the Minister v. Heritors of Tranent, 1909 S.C. 1242, per Lord Low at p. 1244, 46 S.L.R. 863, which case laid down no general law, for it was a decision in a special case upon an agreement between the interested parties. The proceeds of working coal or marl had to be invested for the benefit of the incumbents of the cure, as had been done in the present case— Galbraith v. Minister of Bo'ness, 1893, 21 R. 30, 31 S.L.R. 25. The minerals under the glebe or the proceeds thereof were therefore to be treated simply as part of the glebe, or at least the minister's right to them was the same as his right to the surface of the glebe. If so they were not subject to ann. Prior to 1672 the glebe and the proceeds thereof were not subject to ann— Colvil v. Lord Balmerino, 1665, M. 464. By the Act 1672, cap. 13, those things which were subject to ann were defined. If that Act had intended to alter the earlier law it should have done so expressly. What was subject to ann was after that Act limited to such of the fruits of the benefice as that Act subjected to ann— Latta v. Edinburgh Ecclesiastical Commissioners, 1877, 5 R. 266, per Lord President Inglis at p. 272, 15 S.L.R. 168. Glebe and the profits derived from it were not mentioned in that Act, and they never were subject to ann—Ersk. Inst. i, 5, 14, ii, 10, 66, and Nicholson's note at vol. i, p. 592; Connell on Tithes (2nd ed.), ii, 92; Connell on Parishes, p. 435; Buchanan on Teinds, p. 513; Mair's Digest of Church Laws (4th ed.), p. 471. The minister's executors, and where the glebe was let, his tenants, had right to the crop sown before his death—Mair, loc. cit.; Taylor v. Stewart, 1853, 2 Stuart 538. Stair, ii, 8, 34, was not supported by the case referred to, viz., Scrimgeor v. Murray's Executors, 1664, M. 463.

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Interest upon the sale of part of the glebe under the Glebe Lands (Scotland) Act 1866 (29 and 30 Vict. cap. 71) was subject to apportionment, and was therefore not part of the stipend—Mair, op. cit., 516. Further, if the pursuer was right, section 15 of the Act of 1866 was inexplicable, but if the defenders were right that section was explicable as being a statutory provision that the rent and feu-duties, which for the first time were made legal as revenue of the glebe, should be subject to ann. In any event the trust here in question was in favour of the incumbent for the time being. His widow and bairns were not beneficiaries, and could not without reducing the trust deed succeed in their present claim.

Argued for the pursuers—The terms of the trust deed were irrelevant in the present question. The widow and bairns could never have been named as beneficiaries, but that did not exclude them from claiming ann out of the trust funds if those were subject to ann, for ann did not effeir to the widow and bairns but to the minister. It was his ann—Act of 1672, cap. 13—and was a gift to him for his widow made out of gratitude— Latta v. Edinburgh Ecclesiastical Commissioners, 1877, 5 R. 266, 15 S. L. R. 168 ( cit.), per Lord President Inglis at p. 272. Further, the framers of the deed in the present case were not in the position of independent donors of a mortification who could choose such terms as they chose in setting out the trust purposes, and the legal quality and incidents attaching to the funds in question in relation to stipend and ann did not turn upon the terms of the bequest as in the Church of Scotland Ministers' Widows' Fund v. Ness, 1917 S.C. 696, 54 S.L.R. 581. The framers of the trust deed here could not affect the legal quality of the subjects producing the money or of the money. The revenue in question was subject to ann. The ancient rule excepting glebe from ann was perfectly intelligible. When it was fixed no question except as to the surface of the glebe had been raised, and the glebe was invariably in the natural possession of the minister. He required a manse to shelter him and a glebe for his sustenance. Hence the glebe was not a rent-producing subject. When the minister died his successor required a glebe as much as he did a manse. If, then, the glebe had been subject to ann the new minister would have been without the means of sustenance for a half-year. Hence the glebe in that condition of things was necessarily not subject to ann. Hence a new minister could eject tenants of the deceased minister from the glebe— M'Callum v. Grant, 1826, 4 S. 527. That was consistent with Stair, ii, 8,34. The Act of 1672 was couched in wide terms, which covered all the fruits of the benefice in whatever form. If anything was to be regarded as excluded a substantial reason for exclusion must be alleged. The exclusion of the surface of the glebe had been explained. A part from that ann was applicable to everything which could be called stipend or rent of the benefice. Those words were not synonyms. Stipend was what was payable out of teind; rent of the benefice was what was payable aliunde— Latta's case ( cit.), per Lord President Inglis at p. 271, referring to Earl Marishal v. Relict and Bairns of the Minister of Peter head, 1628, 1 B. Sup. 36. The revenue of the fund in question was fruits of the benefice which took the shape of money— Cheyne v. Cook, 1863, 1 Macph. 963, per Lord Justice-Clerk Inglis at p. 971. Ann was exigible from stipend payable out of teind, and also from fruits of the benefice payable aliunde— Representatives of Sheils v. The Town of St Andrews, 1709, M. 466; Wood's Relict v. Magistrates of Edinburgh, 1747, M. 467; Magistrates of Stirling v. Gordon, 1837, 15 S. 657, per Lord Corehouse at p. 662; Small Stipends Act 1810 (50 Geo. III, cap. 84), section 16; Parliamentary Charges Act 1824 (5 Geo. IV, cap. 90), section 24. It was exigible from everything which in a vacancy went to the ministers' widows' fund— Cheyne v. Cook ( cit. sup.), per Lord Justice—Clerk Inglis. When the minister worked the minerals or they were leased the proceeds had to be invested at the sight of the heritors and presbytery, and the interest on the capital sums so invested were part of the fruits of the benefice— Ramsay v. Heritors of Maderty, 1794, M. 5153; Minister v. Heritors of Newton, 1807, M. App. Glebe, No. 6, and the session papers there in; Robertson's Coll., vol. xxvi (6), No. 11; Campbell's Coll., vol. cxxv, No. 80; Cadell v. Allan, 1905, 7 F. 606, per Lord Kinnear at p. 626, 42 S. L.R. 514. Such sources of revenue as were not derived from teinds were elements to be considered in granting augmentations— Stewart v. Lord Glenlyon, 1835, 13 S. 787; Minister v. Heritors of Kilmalcolm, 1875, 3 R. 32, 13 S. L. R. 16; Rainie v. Magistrates of Newton-on-Ayr, 1897, 24 R. 606, per Lord President Robertson at p. 610, 34 S.L.R. 447; Connell on Tithes, vol. i, p. 418. If so that revenue fell to be treated in the same way as stipend in a question of ann. Vacant stipend included everything that the minister was in receipt of at the date of his death — Church of Scotland Ministers' Widows' Fund v. Ness, cit. sup. Rent for long leases and feu-duties were subjected to ann by the Act of 1866, because such revenue from the glebe was then for the first time rendered legal, and it was necessary to fix its position so that third parties might be aware of it. No such necessity existed as regards such revenue as in the present case. The Acts 1546, cap. 4, 1571, cap. 41, 1563, cap. 72, and 1572, cap. 48, were referred to.

At advising—