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Sir William Bruce of Kinross v Sir David Arnot of that IlK. [1695] Mor 15648 (26 February 1695)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Mor3615648-047.html Cite as:
[1695] Mor 15648
Sir William Bruce of Kinross v. Sir David Arnot of that IlK
Date: 26 February 1695 Case No. No. 47.
Heritor not bound to keep his land in tillage for the benefit of the titular.
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Sir William Bruce pursued Sir David Arnot for payment to him, as titular, of his parsonage-teinds. Alleged, He has converted his arable ground to grass, and so there is no parsonage due; and for vicarage, Sir William has no right to it. Answered, an heritor may inclose and improve his ground as he thinks fit; but he must not do it in œmulationem vicini, or in prejudice of me, who have a right; otherwise, he may evacuate my teinds, and make them wholly unprofitable, (though it is not to be presumed malice will extend so far as to persuade a man to cast his own interest waste, of purpose to defraud the titular of his teind); heritors having the free use and disposal of their ground, yet so as not to wrong third parties; for quoad the teind, he is but a tenant; and a tenant is bound to labour, that his master may have a hypothec in the fruits of his ground for his security; 27th February, 1623, Randifurd, No. 136. p. 15256.; which agrees with the Roman law, L. 25. § 3. D. Locat. And thus, ground converted into a garden was thereby found teind free, when it was evident that it was principaliter done for improvement; 9th June, 1676, Burnet against Gib, No. 35. p. 15640. This was ordained to be farther heard.
1695. January 21.—The Lords now decided the point, and found Sir William, as titular, could claim the parsonage-teinds of no more but what was laboured and tilled, and that he could not hinder a proprietor to turn arable ground into grass; but he had an easy remedy, by pursuing a valuation, which, by the act of Parliament in 1633, is fixed at the 5th boll; and if all be vicarage, then the parsonage great teinds are mortified out of these.—See Stair, Tit. Teinds. But this puts titulars, before valuation, to great trouble, to liquidate how much each year was in corns and how much was left in grass.
Fol. Dic. v. 2. p. 439.
Fountainhall, v. 1. p. 672. & 702.
