Scottish Court of Session Decisions

Subject_1 BONA FIDE CONSUMPTION.
Subject_2 SECT. I.

Bona Fide Possession of Teinds.

Captain Hamilton Blair of Blair,
v.
Laurence Scott of Bavilaw, and his Curator ad litem

Date: 24 November 1752
Case No. No 4.

Lands were adjudged, with teinds, &c. and exposed to judicial sale. There was no title to the teinds in the person of the common debtor. The purchaser, from circumstances, knowing that the sale did not in fact include the teinds, being pursued for bygones, found not entitled to plead bona fide perception.

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The lands and estate of Kersland, with the teinds, parsonage, and viccarage thereof, were brought to a judicial sale before the Lords, at the instance of a creditor upon the estate, by an adjudication which adjudged both lands and teinds; and William Blair of that ilk was called as a defender in the process; and in the year 1738, William Scott of Bavilaw became purchaser of the lands and teinds, as exposed to sale before their Lordships.

Captain Hamilton Blair of Blair, as patron and titular of the teinds of the parish of Dalry, within which the lands of Kersland lie, brought an action against Laurence Scott, son and heir of William Scott, the purchaser of Kersland, for payment of the bygone teinds of these lands since the time of the purchase. Sundry objections were moved to the purchaser's title; which being over-ruled.

It was pleaded for the defender, That the title under which the sale proceeded, contained the teinds, parsonage, and vicarage, of the whole lands; and the decreet of sale adjudges and dispones to the purchaser the lands, with the teinds, parsonage and viccarage; and therefore, had he continued to possess the teinds under this title for 40 years, he would have acquired an absolute right to the teinds by positive prescription: And as the defender has possessed the teinds for twelve years before the date of this action, he is entitled to plead that he is a bona fide possessor, and that they are fructus bona fide percepti et consumpti, more especially that the pursuer's predecessor was called in the process of sale, and, during a dependance of eleven years, made no claim to the teinds, but allowed them to be uplifted with the stock, and applied for payment of the creditors.

Answered for the pursuer, It is impossible to plead a bona fides without a title, far less contrary to the express tenor of the title. In this case the teinds could not be sold, because there was no fort of title to the teinds in the person of the common debtor; and the creditors only insisted that the usual value should be put upon the heritor's privilege of purchasing his own teinds, as appears from the first article of roup. And that William Scott the purchaser well understood that the teinds did not fall under his purchase, appears from a petition given in by him to the Court relative to the purchase; and as to the adjudication upon which the sale proceeded, wherein the teinds are comprehended, it is only conveyed to Bavilaw for security of his purchase, which was not of the teinds, but only of the privilege of buying the teinds; and so far he has right to the adjudication, and no further. The decreet of sale is his cardinal title, and beyond it he cannot plead a bona fide possession.

Replied for the defender, The articles of roup, referred to by the purchaser; proves that the creditors had not recovered a sufficient title to the teinds in the common debtor, and that they did not choose to risk an abatement of the price which might be demanded by the purchaser upon this account; but if such title had been found after the sale, this precaution of the creditors would have been no objection to the purchaser's claiming the heritable right of the teinds; nor would there have been any objections to the purchaser's acquiring a right by prescription; and therefore, till a better right was produced, he was bona fide possessor of the teinds, as well as of the lands; and if, in any case, a bona fide possession is pleadable, it is in the case of teinds: For, if the titular had made his claim, the heritor would have redeemed himself by payment of six or nine years purchase; whereas, by secreting his right, as in the present case, he subjects the heritor to twenty years purchase of his teinds; so that the titular's delay ought to prejudge himself and not the possessor.

‘The Lords repelled the defence of bona fides, in respect of the answers.’

Act. Tho. Hay. Alt. Miller & Craigie. Clerk, Kirkpatrick. Fac. Col. No 36. p. 57.