Scottish Court of Session Decisions

Subject_1 TEINDS.
Subject_2 SECT. IV.

Valuation.

John Sinclair of Freswick
v.
Sir John Sinclair of Mey

Date: 3 December 1772
Case No. No. 155.

Where the patron, on the one hand, was insisting in a declarator, that he had right to uplift the ipsa corpora of the teinds of an heritor's lands, while he, on the other hand, was suing a valuation and sale of his teinds, the patron found not entitled to draw the ipsa corpora, for that the heritor, as becoming defender, is entitled to hold the possession, without the necessity of a warrant.

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In the year 1729, William Sinclair of Freswick, as patron of the parish of Cannisby, brought an action against the heritors of that parish; and, among others, against the defender’s grandfather, for payment of the teinds of his lands within the foresaid parish; and, in the year 1731, obtained a decree against him, for payment of certain quantities of victual yearly, and in time coming, as the value of the teinds of said lands.

Freswick’s right of patronage having been afterwards brought under challenge by the family of Mey, it was finally given in his favour; but the present Freswick, when he came to insist for payment of the teinds bygone, and in time coming, upon the foot of the foresaid decree 1731, having met with opposition from Sir John Sinclair now of Mey, upon various grounds, he brought a new action, to have it found and declared, that he had right to draw and uplift the ipsa corpora of the teinds of these lands, and that the defender should be prohibited and discharged from intromitting with, or away taking the same, &c.

On the other hand, Sir John Sinclair raised an action of valuation and sale of his teinds; and when Freswick, in terms of the conclusion of his action, came to insist to be put in possession of the teinds quoad futura, the defence was laid upon that clause of the statute 1693, Cap. 23, whereby, upon a recital, that “many times heritors intent actions for the valuation of their teinds, against the titulars and others having right thereto, of design only, that, upon pretence of a depending action of valuation, they may get a warrant for leading of their own teinds, and thereafter suffer the action for valuation to lie over, and do not insist therein; by which the titulars, and others having right to the teinds, are exceedingly prejudged: For remeid whereof, it is statuted and ordained, that any warrant to be granted hereafter, by the commissioners, to heritors, for leading of their teinds, shall endure only until a protestation for not insisting be obtained at the instance of the defender.” And, therefore, as no such protestation had in this case been obtained, it was contended that the defender ought not so be dispossessed, or the pursuer let in to the drawing of the teinds themselves.

The Lord Ordinary found, “That, in respect the pursuer has not obtained protestation in the process of valuation of teinds, raised by Sir John Sinclair, he is not entitled to draw the ipsa corpora of the teinds of the defender’s lands; therefore assoilzies the defender, and decerns.”

Upon a reclaiming petition and answers, the Court adhered to the Lord Ordinary’s interlocutor, “so far as it finds that the pursuer is not entitled to draw the ipsa corpora of the teinds of the defender’s lands.” But it was upon a different medium. The act 1693 was not thought to apply to this case, as there was no warrant putting the heritor in possession of his teinds, on his pursuing the action of valuation; but then, on the other hand, there was no law for outing the heritor of the possession of his teinds. It was even questionable if, in such a case, there is occasion for a warrant. The heritor becomes defender, and is entitled to hold the possession; and it is the genius of our law, that the heritor should draw his own teinds. Indeed, if there should be any mora on his part, the titular may have relief from the Court.

Act. A. Lockhart. Alt. M-Queen. Clerk, Kirkpatrick. Fac. Coll. No. 36. p. 95.