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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Christian Beg v Mr Thomas Rig. [1751] Mor 1719 (3 July 1751)
URL: http://www.bailii.org/scot/cases/ScotCS/1751/Mor0401719-003.html
Cite as: [1751] Mor 1719

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[1751] Mor 1719      

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. I.

Bona Fide Possession of Teinds.

Christian Beg
v.
Mr Thomas Rig

Date: 3 July 1751
Case No. No 3.

An heritor whose charter bore, cum decimis inclusis, and a separate reddendo for teinds, and was burdened with the payment of minister's stipend, was pursued for bygone stipend. He pleaded bona fide perception, the lands being now disjoined and annexed to another parish. Bona fides found to be excluded; the defender's predecessor having pursued a declarator of immunity, in which the defender himself was counsel.


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The Earl of Loudon, as in right of the abbot of Melross, granted to Cuningham of Enterkin, a charter 1671, of the lands of Lochlie and others, una cum decimis garbalibus cum iisdem inclusis; the vassal paying a separate feu-duty pro decimis garbalibus of part of the lands, and relieving the superior of the localled stipend to the minister of Mauchline; and for the teinds of another part, paying a feu-duty, and relieving him de annualibus regiis, et albis firmis ejusdem debitis, secundum proportionem valuationis ejusdem. This was not an original charter.

Enterkine disponed these lands 1718, to Mr Thomas Rig advocate; whom Christian Rig, relict of Mr Thomas Lindsay, minister of Dalgain or Sorn, within which parish the lands lie, as disponee from her husband, pursued for the whole stipends, from his purchase, to Mr Lindsay's death in 1738.

The defence was bona fide possession and consumption, the lands being held cum decimis inclusis; for so was found, 19th July 1669, Douglas against Wedderburn, No 29. p. 1750.; 25th June 1731, Stirling against the Feuars of Denny, No 1. p. 1717.

Pleaded for the pursuer, The decisions were betwixt titular and heritor, which does not apply to the case of a minister: The rights of titular and heritor are exclusive of each other; but an heritor's right to teinds does not exclude a minister's stipend. The defender's right could give no bona fides, as it is not a charter from a churchman, of lands with the teinds included, which had never been formerly separated, but both possessed by the beneficiary; for it is only such teinds that are not affectable by stipend: Here the titular, whether having right to the lands, and originally feuing them out, or confirming a former feu of the abbot, has added a grant of the teinds; which, however, still make a separate subject, as by the charter produced there is a separate reddendo for stock and teind; and the vassal is burdened with stipend to the minister of Mauchline, and with the King's annuity. The lands lay originally in the parish of Mauchline; and the titular who was burdened with the whole stipend, when he disponed these teinds, laid part of it upon them: Afterwards, about 1650, the new parish of Dalgain was erected, by disjoining part of the lands of the old parish, the stipend whereof was localled on the heritors, and did not fall to enter their charters.

Mr Rig could be in no bona fides, in respect Mr Lindsay charged Enterkine the former heritor, in 1695, on a horning, proceeding on another in 1688, on the decreet of erection; and Enterkine, in 1702, raised a declarator of immunity from stipend, or teind-duty, and obtained decreet in absence; which Mr Lindsay in 1703 suspended, and Mr Rig was lawyer for Enterkine; but the suspension was never discussed: However, Mr Rig accepted his disposition to the teinds with warrandice from fact and deed.

Pleaded for the defender, His lands are held by charter and sasine cum decimis inclusis; which at least is a good title of bona fides: Nor is there any thing in his rights inconsistent with this claim; he is burdened with stipend to the minister of Mauchline, that is to fay, the titular, when he granted the feu, made this a part of the reddendo; and that it was the same thing to the vassal, whether he paid it to his superior, or an assignee; but there is no stipend imposed on him to his own minister, which was the natural burden upon his teinds, if they were liable in any. Mr Rig cannot be supposed to have remembered the procedure betwixt Mr Lindsay and Enterkine, or if he did, it would have served rather to persuade him the lands were free, as there was a decreet of that import; and Mr Lindsay neither discussed the suspension, nor a reduction which he raised thereof.

The Lords, 5th February, sustained the defence of bona fide possession, founded on the charter cum decimis inclusis: And, on bill and answers, they repelled the defence. See Personal Objection.

Act. Boswel & J. Grant. Alt. Ar. Hamilton. Clerk, Forbes. Fol. Dic. v. 3. p. 97. D. Falconer, v. 2. No 117. p. 260.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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