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Scottish Court of Session Decisions >>
John Malcolm v Irving of Gribton. [1697] Mor 14791 (7 July 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor3414791-015.html Cite as:
[1697] Mor 14791
In a question with an appriser, who had possessed only one of the rooms apprised, he was found liable only for what he possessed.
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Mr John Malcolm, Minister at Holywood, pursued Irving of Gribton, for £.60 Scots, as his yearly stipend forth of these lands. Alleged, 1mo, That he had apprised both Over and Nether Gribtons, but had entered to possession of only one of these rooms, the others being all these years possessed by Maxwell, the common debtor, from whom he had apprised, and so could be no farther liable but conform to his intromission and possession. Answered, You must be liable for the teind of the whole, unless you condescend quo modo you was debarred from the one room more than the other, viâ facti, vel viâ juris. Replied, The debtor being necessitous, did uplift it, so that the appriser never attained possession of that part. The Lords, however this might militate against him, if a co-creditor were pursuing him to count, yet they considered Ministers had action against none but intromitters with the teinds; therefore they sustained the defence, and found him liable only for what he possessed. 2do, He alleged, I cannot pay you at the rate of £.60 yearly, because, by a decreet of valuation produced, the teinds extend only to four bolls of bear of Nithsdale measure, and he is content to pay conform to that. Answered, In dear years, these four bolls (which will be ten of Linlithgow measure) will be more than £.60, yet he must have it in money, because he offers to prove he has been thirteen years in possession of it; and by the regula cancellariæ apostolicas triennialis et decennalis possessor non tenetur docere de titulo; and was so found, Lesly against Parishioners of Glenmuck, No. 200. p. 11001. voce Prescription. Replied, That rule held only as a presumptive title of a churchman's possession, where the true one does not appear; as is evident by the decision, Bishop of Dumblane against Kinloch, No. 28. p. 7950, voce Kirk Patrimony; but here the valuation (which must be the only rule of the Minister's stipend) is produced. The Lords found it enough for the Minister to prove seven years use of the payment of the £60, to make the heritor liable for bygones, till the valuation, in a declarator, were made the rule in time coming. See Tack.
Fol. Dic. v. 2. p. 394. Fountainhall, v. 1. p. 782.
