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(Before
Where a minister had in 1873 received authority to feu his glebe, part of which, however, in 1923 still remained unfeued, held, following the case of Stewart ( 1887, 25 S.L.R. 164) that the conterminous proprietors, although they had failed to exercise their right of pre-emption within the period fixed by section 17 of the Glebe Lands (Scotland) Act 1866, might with consent of all parties interested be allowed to purchase.
The Glebe Lands (Scotland) Act 1866, sec. 17, enacts—“ Right of Pre-emption by Proprietors where Lands are Conterminous with the Glebe.—Where the Court shall have made an order or interlocutor granting authority to feu or let on building lease, and fixing the minimum feu-duty or rent, any proprietor whose lands are conterminous with the glebe mentioned in such order or interlocutor may, within thirty days of the date of such order or interlocutor, intimate his willingness to feu or lease or to purchase so much of the said glebe at such a rate of feu-duty, or rent, or price as the Court may on a consideration of the whole circumstances of the case, and after directing such inquiry as they may consider necessary, determine;… and in case of sale shall pronounce a decree of sale thereof in favour of such heritor.…”
On 23rd May 1923 the Parish Council of the Parish of Alva and the Rev. James Alexander Williamson, minister of the parish, lodged a minute in the petition of the Rev. Andrew Kelly, formerly minister of the parish, under which he in 1873 had obtained authority in terms of the Glebe Lands (Scotland) Act 1866 to feu the glebe. The minute set forth the decree of the Court in the said petition, dated 3rd March 1873, which, inter alia, authorised the petitioner and his successors in office to feu the glebe.
The minute stated further—“That the said glebe has, following upon said interlocutor, been available for feuing for building purposes, but two feus only have been taken.… No feu has been taken off since 1887, and there is no immediate prospect of any demand for feus for building purposes. That the Alva Cemetery belonging to the Parish Council of Alva bounds the glebe on the east, and that the said Parish Council finds it necessary to acquire additional land for the purpose of extending the said cemetery. That after full investigation the said Parish Council has ascertained that the only lands suitable for the purposes of sepulture in the immediate neighbourhood of the said
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cemetery are contained within the lands of the said glebe. That the minuters, the said Parish Council, desire to acquire a portion of the glebe of Alva in question for the purpose of extending the cemetery belonging to them, consisting of that portion of the said glebe extending to 1 acre, 2 roods, 7 poles, 16 yards or thereby imperial standard measure, bounded on the south-west and south-east by other portions of the said glebe, on the north-west partly by the manse garden and partly by Alva Parish Churchyard, and on the east by the existing cemetery of the said Parish Council, all as shown in red on the plan. Subject to the authority of the Court being obtained, they have arranged, to purchase same at the price of £200 per acre. Reference is made to the 17th section of the Glebe Lands (Scotland) Act 1866. That the said Parish Council of the Parish of Alva are conterminous proprietors in terms of the said statute, and although they have not exercised their right of pre-emption within the statutory period, the said Rev. James Alexander Williamson, now minister of the parish of Alva, is willing that they should have the same privilege with respect to the glebe in question as they would have been entitled to if they had intimated their willingness to purchase within the said period. That the consents of the Presbytery of Stirling and of the heritors of the parish through their general committee have been obtained to this application conform to certificates by their respective clerks.” The application was heard by the Teind Court on 25th May 1923, when counsel for the minuters craved the Court after such procedure and inquiry as should seem proper to fix the price which the Parish Council should pay for the said portion of the glebe, and thereafter to pronounce decree of sale in their favour subject always to the provisions of the said section in regard to the consignation of the price. He referred to the case of Stewart, 1887, 25 S.L.R. 164.
On 25th May 1923 the Court remitted to the Lord Ordinary to inquire into the circumstances set forth in the minute and to report.
On 8th June 1923 the Lord Ordinary (
On 2nd November 1923 the Court, without delivering opinions, and following the course adopted in the case of Stewart ( 1887, 25 S.L.R. 164), granted the prayer of the minute, and pronounced the following interlocutor:—
“Find that the price or value of the portion of the glebe of the parish of Alva … authorised to be feued … shall be £370 sterling, and … in terms of the 17th section of the statute sell, dispone, adjudge, decern, and declare the said portion of said glebe … to pertain and belong heritably and irredeemably to the said parish of Alva and their successors at the foresaid price conform to the provisions of the statute, but supersede extract until consignation of the price shall be made in the hands of the Royal Bank of Scotland and the receipt be deposited in the hands of the Clerk of Court, and decern.”
Counsel for Minuters— Jamieson. Agents— Dove, Lockhart, and Smart, S.S.C.