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Scottish Court of Session Decisions >>
The Laird of Monimusk v The Laird of Pitfoddels. [1678] Mor 15644 (13 July 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1678/Mor3615644-038.html Cite as:
[1678] Mor 15644
That the teinds were included, was not inferred by an infeftment having two distinct reddendos, one for the stock, and another for the teind, though it bore the teind included.
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Monimusk being infeft in the one half of the Barony of Torrie, and Pitfoddels in the other half, the Minister of Nigg pursued for a locality before the commission for plantations against them both, but Pitfoddels producing his infeftment of his half, bearing cum decimis inclusis, before the act of annexation 1587, although it bore a distinct reddendo for the stock and teind, the commission finding it a point of law, would not determine, but allocated the whole upon Monimusk, reserving him action of relief before the Lords as accords, for his share; whereupon he pursues declarator, that Pitfoddels' rights did not exeem him from the burden of stipends, though it bore cum decimis inclusis, because it was clear by the charter, that before the same, his predecessors had been tacksmen for the teind, and paid twenty-eight bolls of victual therefore, and therefore the charter hath one reddendo for the land, and another for the teind, expressly converting the twenty-eight bolls; but decimæ inclusæ are only where church-men had right both of stock and teind, and did indistinctly give a feu of both after the Lateran council, when all feus of teinds were prohibited, and therefore “teinds included” were always given as never having been separated or distinguished from the stock, and so feued out before that council, which, by recent infeftment, is ever presumed to have so been, unless the contrary can be proved. The defender alleged, that his right being produced before the act of annexation, the church might have feued both stock and teind, for the Lateran council was never received here; and it appears by the charter, that both stock and teind were always in the same person's hand.
The Lords declared these teinds having a distinct reddendo, not to have the privilege of teinds included, albeit feued before the act of annexation, but that they were liable with, other teinds for Ministers' stipends.
Stair, v. 2. p. 632.
*** See Fountainhall's report of this case, Sect. 2. h. t.
