Scottish Court of Session Decisions

Subject_1 PART I.

TEINDS.

Goodlet Campbell of Auchloyn, and other Heritors of the parish of Balquhidder,
v.
The Earl of Moray

Date: 9 July 1777
Case No. No. 4.

What is sufficient right to teinds? - Will a personal right prevent teinds being allocated as free teind?

See No. 81. p. 15694.

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In the process of augmentation, modification, and locality of the parish of Balquhidder, Mr. Campbell and other Heritors having been infeft in their teinds, contended that the augmentation must be allocated upon the Earl of Moray’s teinds as free teind, since his Lordship had at most only produced a personal right to these teinds. In particular, with regard to a part of Lord Moray’s lands called Wester Inverlochlarig, it was pleaded by the heritors, that when Duke of Athole, the titular of the parish, feued out that land to Lord Moray’s author, no mention whatever was made of the teinds; and although there is no reservation of them, yet teinds, being always considered as a separate tenement from lands, they could not be carried by a disposition of the property, unless specially conveyed. Neither do any of the subsequent conveyances ever take notice of these tiends; so that supposing the teinds to have been possessed since the original feu by the family of Athole, no prescription could follow, as there was no title to prescribe.

Answered, That as the estate of Glengarnock was feued out in 1719, by the family of Athole, in five different parcels, to the whole of which, except to Inverlochlarig, one of the parcels in question, were granted rights to their teinds, it must be presumed that it had been a mere omission as to that parcel, particularly as there is no reservation of teinds in the conveyance. That this was the case is evident, from the family of Athole never having made any demand for these teinds, which they appear to have done for other teinds in the parish, which had not been disponed; and the Duke of Athole, as the titular of the parish, has now localled them as teinds heritably disponed; therefore, certainly, in a question with the other heritors, this must be considered as a sufficient title. For although teinds are considered as separata tenementa from the lands, yet the decisions of this Court have, according to the intendment of the Legislature, laid hold of the slightest grounds for uniting them; and therefore, although the teinds are not conveyed per expressum, it must be presumed, from the circumstances of the case, that it was the disponer’s intention to convey both stock and teind; 27th February 1672, Scott against Muirhead, No. 31. p. 15638; 5th July 1748, Dunning against Creditors of Tullibole, observed by Lord Kilkerran, No. 62. p. 15659. And it appears, that both the Earl of Moray and his authors had paid a price for these lands, adequate to the value of both stock and teind.

The Lord Ordinary repelled the objection to the Earl’s titles; and upon advising a petition against this interlocutor, with answers, the Court sustained the titles to the teinds, produced for the Earl of Moray.

Lord Ordinary, Alva. Act. M'Leod, Bannatyne. Alt. D. Rae.