Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. VI.

Possession upon a Right null ex facie.

Mr Andrew Reid, Minister of Kirkbean,
v.
George Maxwell of Munshes, and John Lanerick of Torrorie

Date: 7 July 1708
Case No. No 25.

A minister held a decree of modification and locality. Some years after, an heritor obtained a decree of valuation, by which his proportion would have been less. In a subsequent prosecution by the minister, he was not allowed to plead bona fide possession.

Click here to view a pdf copy of this documet : PDF Copy

George Maxwell of Munches having raised a valuation of the teinds of his lands of Torrorie, lying within the parish of Kirkbean, during a vacancy of the cure, wherein the patron, titular, and moderator of the presbytery were called, as the proper contradictors. He, in February 1699, thirteen days after Mr Andrew Reid's admission to that church, obtained decreet, valuing his teinds to a less duty than the proportion of stipend imposed on his lands by a decreet of modification and locality in the year 1650: Which decreet of valuation being reduced by the commission upon this ground, That the minister was not called to the pronouncing thereof: Mr Andrew Reid pursued the said George Maxwell, and John Lanerick, present heritor of Torrorie, for several years stipend due to him out of these lands, conform to the decreet of modification.

Alleged for the defenders: They were bona fide possessors, by virtue of the decreet of valuation, till the same was reduced; and could be liable in no greater quantity of stipend than their valued teind-duty; especially, considering that their teinds are truly worth no more, and the highest flown divines never claim more than the teind: For even null decreets and other deeds have been found tituli colorati, affording the benefit of bona fide possession till they were reduced, Guthrie contra Laird of Sornbeg, No 65. p. 861.; Earl of Wintoun contra the Countess, Stair, v. 1. p. 357. voce Minor; Hamilton contra Harper, Stair, v. 1. p. 606. voce Removing; Scrimzeour contra Earl of Northesk, No 30. p. 1751.; 14th December 1677, Dick contra Oliphant, infra h. t. Consequently the decreet of valuation in question, is a sufficient titulus bonæ fidei, not only to John Lanerick, who bought the lands from Munshes, and was not obliged to know but the decreet of valuation was the rule of paying the teind; but also to the seller, who thought himself under no obligation to call a minister, not in the cure at the raising of the process; and yet he was cited in a manner, by calling the moderator of the presbytery, whereof he was then a member.

Answered for the pursuer: There is no pretence for bona fides, so long as the minister's decreet of locality stands unreduced; for ignorantia juris excusat neminem, Grant contra Grant, No 24. supra; and till Mr Reid was established minister of Kirkbean, it had been officious and unseemly in him, though a member of the presbytery, to middle in matters of the stipend of the parish.

The Lords repelled the defence of bona fides, in respect of the minister's standing decreet of modification and locality.

Fol. Dic. v. 1. p. 109. Forbes, p. 260. *** The same case is reported by Fountainhall:

By decreet of modification and locality in 1650, there is made payable to the minister of Kirbean, a chalder and eleven bolls of meal out of the lands of Torrory, as a part of his stipend. Maxwell of Munches finding his teinds of these lands over-valued far beyond their worth, pursues a valuation of them in 1699, and, upon a clear probation, gets a decreet liquidating them to a chalder of victual, and some less. Mr Andrew Reid being about the same time translated from Dunscore to Kirbean, he pursues a reduction of that valuation before the Lords, as Commissioners to the Plantation of Kirks, and obtains a decreet reducing the said valuation, in so far as it diminished his quota of stipend established by the allocation in the year 1650; and that valuation being thus taken out of the way, he raises a new process against Munches, and John Lanerick who had since that time purchased the lands from him, for paying the old quota of stipend imposed on these lands by the decreet 1650, and that for all the years bygone since his entry and admission in February 1699, and in time coming.—Alleged, As to all years since the reduction of the valuation, they were content to pay the old quota; but, for the years preceding, during which the decreet of valuation was a standing right, they were secure as bona fide possessors, which is the great charter and security of the lieges, otherwise possession, or a presumptive right, instead of a benefit would be a snare. What have we for most of our properties, but sentences of the supreme judicatures? And if this did not induce a bona fides, so as to quiet our minds and possessions, but that we must be still accountable for the fruits and intermediate profits uplifted and spent by us on the faith of these decreets, what certainty or probability arises from them, and who will improve or meliorate lands on such a sandy foundation? And, therefore, it has been ever sustained to assoilzie from bygones, as fructus bona fide percepti et consumpti; as was found in the following cases, 18th November 1664, Guthry contra Sornbeg, No 65. p. 861.; Hamilton contra Harper, Stair, v. 1. p. 606. voce Removing; the Earl of Winton contra the Countess, Stair, v. 1. p. 357, voce Minor; Scrimzeour contra the Earl of Northesk, No 30. p. 1751.; 14th December 1677, Dick contra Oliphant, infra h. t.; where bona fides assoilzied from bygones, though their author's right was improven as false and forged, he having no accession to, nor knowledge of the falsehood.—Answered, None of these allegations can ever amount to a bona fides, for his decreet of valuation is reduced ab initio, and declared null as if it had never been pronounced, and can no more defend as a titulus bonæ fidei than an adjudication against one who was not proprietor of the lands adjudged could secure against repetition of the rents uplifted thereby. 2do, He interrupted their bona fides by a charge of horning for the old quantity, and they having offered, by way of instrument, the lesser valued duty contained in the last decreet, Mr Reid protested he would not depart from his first modification, and would not homologate nor acknowledge the lesser quantity; which was sufficient to put them in mala fide.—3tio, Being pursued by Torrory for a riot, in offering to poind for more than the valued duty, the said Mr Andrew raised an advocation, which Torrory has never insisted in to this hour. Likeas, he removed him out of his house, because he would not acquiesce to take the lesser quantity; all which demonstrate, that his bona fides was interrupted; and the very decreet of valuation itself is ipso jure null, for he is not called thereto, though he was admitted as incumbent before it was pronounced. Replied, That the reducing deeds ab initio are exuberant words of stile only, and in many cases operate nothing retro, but only in time-coming; and he did all that was incumbent on him; for the kirk being vacant, he cited the patron, titular, and Moderator of the Presbytery of Dumfries, where it lay; and Mr Reid was minister in the same bounds, and, ere he was translated, the whole probation was led and prepared, and nothing remained but the advising the report, and decerning. And how can he be reputed in mala fide, when he had proven by unexceptionable witnesses to a demonstration, that his teind was within a chalder of victual; so the minister, most iniquitously, exacted eleven or twelve bolls more than his teind was yearly worth; and the maximum quod sic, that the highest flown divines pretend to, is the teind. Why then should they covetously grasp at the stock, which as justly belongs to the heritor, both by the laws of God and of the land, as their teind does to them or the church? And if Mr Reid prove it to be a peck more, he should not only have it, but the double. The Lords saw, that both the parties were in damno evitando, and that one of parties behoved to be a loser; yet found Munches and John Lanerick had not taken the legal method to secure themselves, which was by reducing that old decreet of locality in 1650, and calling the other heritors, that the proportion wherein he was over-burdened, might be laid upon the free tiends of other heritors within the parish, and not to have pursued a valuation of their own tiends, miskenning that old decreet, seeing ignorantia juris neminem exculpat; and ere they diminished the minister's stipend, they should have a fund for supplying what was taken from him; and therefore they repelled his bona fides, and found him liable to pay the old stipend aye till he get it lodged upon another. This was so decided me referente. Some thought the bona fides not interrupted till Mr Reid's citation in his reduction, which was not till October 1705; but in regard the old locality in 1650 was standing, the Lords found ut supra.

Fountainhall, v. 2. p. 449.